Court No. - 28
Case :- APPLICATION U/S 482 No. - 777 of 2019 Applicant :- Virendra Alias Rajesh Kumar Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Raj Kumar Mishra Counsel for Opposite Party :- G.A.
Hon'ble Jayant Banerji,J.
Sri Gorakh Yadav, holding brief of Sri Raj Kumar Mishra, learned counsel for the applicant is present. Learned A.G.A. appears for the State.
This application has been filed for quashing the entire proceedings of the court below and the order dated 16.9.2017 passed by the Special Judge (D.A.A.),Etawah in Special Case No. 136-A of 2009, arising out of case crime No. 419 of 2009, under Section 392/411 IPC, Police Station Bharthana, District Etawah.
By means of the impugned order dated 16.9.2017, the application of the applicant for recalling the prosecution witness No.5, Charan Singh for cross examination was rejected.
It has been stated that the application has been rejected on technical ground by the court below and the applicant shall be put to irreparable loss if the order impugned is not quashed.
Learned A.G.A. has pointed out an order dated 23.8.2017 passed by this Court in Application U/s 482 No.26095 of 2017 filed by the applicant challenging the order dated 3.7.2017 passed in Case No. 136A/2009 arising out of case crime No.
419 of 2009, under Section 292, 411 IPC, P.S. Bharthana, District Etawah.
This Court in earlier application had passed the order dated 23.8.2017 which is as under:-
"Heard learned counsel for the applicant and learned A.G.A. for the State respondent.
The present 482 Cr.P.C., application has been filed for quashing the impugned order dated 3.7.2017 passed in case no. 136A/2009 arising out of case crime no. 419/2009 under Sections 392, 411 I.P.C., P.S. Bharthana, District Etawah as well as for quashing the entire proceedings of the aforesaid case.
I have perused the order impugned.
Contention of learned counsel for the applicant is that the applicant had given an application before the court concerned for seeking adjournment on the ground of illness, copy of which has been annexed as annexure no. 4 to the application but the said application was rejected by non-speaking order by the impugned order dated 3.7.2017.
However, looking to the facts and circumstances of the case and in the interest of justice, it is directed that in case, applicant deposits a cost of Rs. 1,000/- before the court below within three weeks' from today along with a fresh application seeking permission to cross-examine PW- 5, namely, Charan Singh, the court concerned shall fix a date in this regard and on which date, PW-5 shall appear and he shall be cross-examined by the applicant and no further liberty shall be given to the applicant. However, it is being made clear that no adjournment under any circumstances shall be granted and the entire cross- examination shall be done on the said date. In case of default in making the payment as specified above, this order granting liberty to the applicant, shall stand automatically vacated.
With the aforesaid direction, the application u/s 482 Cr.P.C. is disposed off finally.
A copy of this order be given to the learned counsel for the applicant within 48 hours on payment of usual charges."
A perusal of the judgement dated 23.8.2017, passed by this Court in Application U/s 482 No. 26095 of 2017 reveals that window of three weeks from the date of order was provided to the applicant to deposit cost of Rs. 1000/ before the court below along with a fresh application seeking permission to cross examine PW-5. It was further made clear by the Court that no adjournment under any circumstances shall be granted and the entire cross examination shall be done on the said date. It was further observed that in case of default in making the payment as specified, the order granting liberty to the applicant shall stand automatically vacated.
Admittedly, the application on behalf of the applicant was filed on 16.9.2017 along with cost of Rs. 1000/ which is reflected from perusal of certified copy of the order dated 16.9.2017 which has been enclosed as Annexure-1 to the affidavit. This is clearly beyond the three weeks window provided by this Court to the applicant for payment of cost. It is evident that the applicant has misused the indulgence granted by this Court by means of its judgement dated 23.8.2017 and deliberately submitted the cost and filed the application on 16.9.2017. The order dated 16.9.2017 passed by the court below thus, cannot be faulted.
This application being devoid of merit is dismissed.
Order Date :- 22.1.2019 sfa/ (Jayant Banerji, J)