Court No. - 65
Case :- APPLICATION U/S 482 No. - 32295 of 2019 Applicant :- Suneel Kumar Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Vivek Kumar Singh,Mayank Yadav Counsel for Opposite Party :- G.A.
Hon'ble Dinesh Kumar Singh-I,J.
Heard Sri Sunil Vashistha, learned counsel for the applicant, Sri G.P. Singh, learned A.G.A. appearing for the State and perused the record.
This application under Section 482 Cr.P.C has been moved with a prayer to quash the impugned order dated 29.04.2019 passed by the learned Additional Sessions Judge/Fast Tack Court, Meerut in S.T. No. 1083 of 2012 (State Vs. Rahul and another), Case Crime No. 291 of 2011, under Sections 363, 120-B, 366, 376 I.P.C., Police Station – Bhawanpur, District Meerut with a further prayer that the Court below may be directed to summon all the prosecution witnesses (PW-1 to PW-6) for their corss examination. Also, a prayer is made to stay the entire proceedings of the said trial till the disposal of this application.
The main argument advanced by the learned counsel for the applicant is that the impugned order has been erroneously passed by the Trial Court refusing the opportunity to cross-examine the prosecution witnesses only on the ground that the accused kept quiet for four long years and did not cross-examine the said witnesses. The other ground of passing of the impugned order was that co-accused Rahul had also moved an application for permitting him to further cross-examine the said witnesses and the said relief was refused. The counsel for accused applicant contends that the refusal to co-accused of relief to cross-examine the witnesses would not be treated as a case at par with the case of the applicant, the applicant's case is at a different footing because in his case no witnesses had ever been cross-examined because the earlier counsel did not cross-examine properly and subsequently, the other counsel has been engaged by him and he is ready to cross-examine the prosecution witnesses.
It has also been argued from the side of the applicant that it was the bounden duty of the Court to see while deciding the application under Section 311 Cr.P.C. whether it was necessary/essential to permit the accused applicant to cross-examine the witnesses or not and whether that would be necessary for proper adjudication of the matter but no such satisfaction has been recorded. Hence, the impugned order suffers from legal infirmity and deserves to be set aside.
Learned A.G.A. has vehemently opposed the prayer for quashing of the impugned order. He has argued that the opportunity sought for to cross-examine the witnesses is nothing but an abuse of the process of law, as long delay has taken place in this case and deliberately the accused had chosen not to cross-examine the said witnesses.
I have gone through the impugned order. It has been recorded in it that an application 90 Kha under Section 311 Cr.P.C. was moved from the side of the accused in which it was mentioned that in this case examination-in-chief had been recorded of all the witnesses, but their cross-examination could not be completed. The earlier counsel of the accused - applicant did not cross-examine the witnesses. Recently, a new counsel has been engaged by the accused and by means of the said application he has sought that on the basis of the principle of natural justice, he should be granted opportunity to defend himself and the said witnesses should be called for again for being cross- examined.
What was further argued before the learned Trial Court is that since earlier there was no counsel from the side of the accused, it was the duty of the Court to provide the accused a government advocate/amicus curiae, which was not done and because of that reason the cross-examination could not be done. Refuting the said allegation/argument before the learned Trial Court from the side of the State, it was said that since 2014 till 2018 no application was moved from the side of the accused seeking opportunity to cross-examine the witnesses and after a long delay of four years, the said application was not maintainable. Further it is mentioned that since it was argued that from the side of co-accused Rahul also cross-examination was not done and an application No. 71 Kha and 73 Kha were moved for summoning the witnesses again, which were rejected and against the said order a revision was preferred which too was rejected and this Court rather directed for expeditious disposal of the case. After taking into consideration all these facts the learned Trial Court had recorded that from the side of the accused counsel, Shri Amardev, had filed Vakalatnama paper No. 51 Kha therefore to say that he had not engaged any counsel, was incorrect and therefore, there was no reason for providing an amicus curiae.
It has been further recorded in the impugned order that from the side of the co-accused Sunil (present applicant) cross-examination has not been done of any of the witnesses and statement of PW-1 was recorded on 28.04.2014 and statement of PW-2, on 05.08.2014 and thereafter, statements of PW-3 and PW-4 were recorded on 13.01.2014 and on 29.01.2014 statement of PW-5 was recorded. Thereafter, on 11.09.2018 statement of Investigating Officer was recorded and on 14.01.2019 statement of accused was recorded under Section 313 Cr.P.C. but, no application was moved from the side of the accused for these four long years to permit cross-examination of the said witnesses. It shows that the accused were not willing to cross-examine those witnesses and engaging a counsel after four long years and then, moving an application under Section 311 Cr.P.C. seeking permission to cross-examine them, would not be a justifiable reason to permit him to cross-examine the said witnesses and accordingly, this application was dismissed by the Trial Court.
After having gone through the impugned order and having heard the arguments of the learned counsel for the applicant, this Court does not see any error in the impugned order because it is amply clear that the accused-applicant was not interested cross-examining the witnesses in as much as a large number of opportunities were before the applicant to cross-examine the witnesses, but he did not cross-examine them. It is very strange that after the statements of five witnesses had been recorded and even the statement of accused under Section 313 Cr.P.C. had been recorded, then the accused applicant has engaged a new counsel to set up his defence that the earlier counsel did not cross- exmine those witnesses. Thus, no case is made out in favour of the applicant. It is nothing but an abuse of process of Court.
Therefore, the application is rejected.
Order Date :- 22.8.2019 LBY