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Madhya Pradesh High Court

Ramesh Dubey vs The State Of Madhya Pradesh Thr on 27 March, 2018

      THE HIGH COURT OF MADHYA PRADESH
                MCRC-7160-2018
               (RAMESH DUBEY AND OTHERS Vs STATE OF M.P.)


Gwalior Bench, Dated: 27/03/2018
      Shri Rajesh Shukla, learned counsel for petitioners.
      Shri    Ajay   Bhargava,      learned    Public   Prosecutor   for
respondent/State.

With consent heard finally.

Present petition under Section 482 of Cr.P.C. has been preferred by the petitioner against the order dated 12-02-2018 passed by the Forth Additional Sessions Judge, Vidisha whereby the application preferred by the petitioners under Section 311 of Cr.P.C against the order dated 25.01.2018 wherein, right of the petitioners to cross-examine witnesses who were present in the Court has been closed and witnesses have been discharged.

According to learned counsel for the petitioner, the case was fixed for petitioners' evidence on relevant point of time due to the fact that counsel for the petitioner went out of station, therefore, he could not cross examine the witness. In the interest of justice, learned counsel for the petitioner seeks a single opportunity to cross examine the witnesses so that equity can be balanced and petitioner would have a chance to prove, plead and establish his part of truth.

Learned counsel for the respondent/State opposed the submission made by the petitioner on the ground that petitioner was casual in his approach, therefore, impugned order has rightly been passed. Thus, prayed for dismissal of petition.

Heard learned counsel for the parties.

Although under the provisions of Section 309(2)(b) of Cr.P.C., preoccupation of pleader in some other Court or non availability of counsel is not a ground for adjournment, therefore, trial Court has rightly passed the order whereby witnesses have been discharged but in the interest of justice, looking to the undertaking given by the petitioner that on the next date when witnesses would be called he will cross examine them and counsel for the petitioner undertakes THE HIGH COURT OF MADHYA PRADESH MCRC-7160-2018 (RAMESH DUBEY AND OTHERS Vs STATE OF M.P.) that he is ready to pay costs also, this Court intends to show indulgence.

Explanation -2 of Section 309 of Cr.P.C. Contemplates about payment of costs, therefore, while setting aside the order of trial Court, matter is remanded back to the trial Court to give one opportunity to the petitioner/accused to cross examine the witness. In the interest of justice and in the fact situation of the case, trial Court is at liberty to impose exemplary costs over the petitioner for the default made by him.

This being so, petition is allowed to the extent that petitioner would have only one opportunity to cross examine those witnesses present on previous occasion. Trial Court to do the needful and proceed accordingly while imposing exemplary costs over petitioner. It is made clear that this opportunity is given to the petitioners as one time opportunity and if petitioners do not cross examine those witnesses who were present on previsions occasion and would be recalled by the trial Court then petitioner would not have any other opportunity to cross-examine them and trial Court would proceed further.

With the aforesaid direction, petition stands disposed of.

(Anand Pathak) Judge Lj*/-

Date: 2018.04.02 18:38:55 +05'30'