Court No. - 74
Case :- APPLICATION U/S 482 No. - 41747 of 2019 Applicant :- Shamsudduha Opposite Party :- State of U.P. and Another Counsel for Applicant :- Mohd. Samiuzzaman Khan Counsel for Opposite Party :- G.A.
Hon'ble Om Prakash-VII,J.
Heard Sri Mohd. Samiuzzaman Khan, learned counsel for the applicant and learned A.G.A. for the State.
Learned counsel for the applicant is permitted to make necessary correction in the memo of application during course of the day.
No notice is issued to private opposite party in view of the order proposed to be passed today, however, liberty is reserved for private opposite party to apply for variation or modification of this order if he feels so aggrieved.
This Application under section 482 Cr.P.C. has been filed with the prayer to quash the orders dated 30.9.2019 and 2.11.2019 passed by Additional District Judge, Court No.24, Kanpur Nagar in Session Trial No.644 of 2015 (State Vs. Shamshudduha) arising out of case crime no.86 of 2015 under sections 498-A, 304 IPC and 3/4 Dowry Prohibition Act, Police Station Moolganj, District Kanpur Nagar whereby the court concerned has rejected the application moved by the applicant for grating time to produce the defence witnesses.
Submission of learned counsel for the applicant is that initially applicant was languishing in jail in this matter. He was released after a gap of about four years. Prosecution could complete its evidence within four years. Statement of the accused was recorded under section 313 Cr.P.C. on 26.8.2019. Applicant has also examined two prosecution witnesses in his defence. On 30.9.2019, an adjournment application was moved on behalf of the applicant, but the same was rejected by the trial court closing the opportunity of the accused to lead evidence and matter was posted for argument. Again application moved for the same purpose was also rejected. Referring to the supplementary affidavit filed today in the matter it is further argued that till date, argument has not been completed in the matter. Some more witnesses are essential to be examined in defence. If instant application is not allowed and impugned order is not set-aside and applicant is not afforded opportunity to lead evidence in his defence, irreparable loss would cause to him. Learned counsel for the applicant also states that applicant is ready and willing to pay the cost imposed by the court concerned.
Learned A.G.A. opposed the prayer and argued that since ample opportunity had been given to the applicant / accused, thus there is no illegality, infirmity or perversity in the impugned order. Matter is posted for argument.
I have considered the rival contentions raised by learned counsel for the parties and have gone through the record.
In this matter, as is evident from the record, statement under section 313 Cr.P.C. of the applicant / accused was recorded on 26.8.2019 and on 2.9.2019, Presiding Officer concerned was on leave, therefore, 5.9.2019 was fixed in the matter. On the next date fixed in the matter, list of witnesses was furnished by the applicant and he was directed by the court concerned to produce the witnesses on the date fixed in the matter. On 12.9.2019, D.W.1 was examined and on 24.9.2019, another witness i.e.
D.W.2 was examined. Next date was fixed as 27.9.2019. Since on 27.9.2019, counsels were on strike, therefore, the court concerned itself fixed next date i.e. 30.9.2019. On 30.9.2019, an adjournment was sought on behalf of the applicant, which was rejected on the ground that ample opportunity had been given to the accused to adduce evidence. Records further reflect that again an application was moved on behalf of the applicant on 2.11.2019 for affording opportunity to lead evidence in defence, but the same was also rejected. Perusal of the supplementary affidavit also reflects that matter is posted for argument at present.
Having heard learned counsel for the parties and considered the submissions advanced across the Bar and also going through the entire record as well as keeping in view the principle of fair trial, when applicant / accused is ready to compensate the prosecution side, I am of the view that present application is liable to be allowed subject to payment of cost of Rs.10,000/- and orders dated 30.9.2019 and 2.11.2019 passed by the court concerned are liable to be set-aside.
Thus, application under section 482 Cr.P.C. is allowed. Orders dated 30.9.2019 and 2.11.2019 passed by the court concerned are hereby set-aside subject to payment of Rs.10,000/- as cost, which shall be deposited by the applicant before the court concerned within 10 days' from today positively furnishing the copy of this order. Court concerned is also directed to provide reasonable opportunity to the applicant / accused to examine rest of the witnesses. It is clarified that no adjournment shall be granted to the applicant on any ground whatsoever and trial will be proceeded on day-to-day basis.
Order Date :- 26.11.2019
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