Allahabad High Court
Naeem Ul Hasan vs State Of U.P. And Another on 28 January, 2023
Author: Dinesh Kumar Singh
Bench: Dinesh Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 87 Case :- APPLICATION U/S 482 No. - 30126 of 2022 Applicant :- Naeem Ul Hasan Opposite Party :- State of U.P. and Another Counsel for Applicant :- Jai Shanker Malviya Counsel for Opposite Party :- G.A. Hon'ble Dinesh Kumar Singh,J.
Order on recall/restoration application.
Heard learned counsel for the applicant and learned AGA for the State.
This recall/restoration application has been filed with a prayer to recall the order dated 11.11.2022 passed by this Court, whereby the application U/S 482 Cr.P.C. was dismissed for want of prosecution.
Cause shown in the affidavit filed in support of recall/restoration is sufficient. The recall/ restoration application is allowed.
The application is restored to its original number.
Order on Application U/s 482 Cr.P.C.
Heard learned counsel for the applicant, learned AGA for the State and perused the record.
The present application under Section 482 Cr.P.C. has been filed for setting aside the judgement and order dated 06.08.2022 passed by Additional Sessions Judge, Court No.2/Special (M.P./M.L.A), Moradabad in Criminal Revision No. 222 of 2022 (Naeem Ul Hasan vs. State of U.P.) as well as order dated 21.07.2022 passed by Additional Chief Judicial Magistrate, Court No.4, Moradabad in Criminal Case No. 366 of 2008 arising out of Case Crime No. 01 of 2008, under Sections 147, 353, 341 IPC and Section 7 Criminal Law Amendment Act, Police Station- Chhajalait, District Moradabad.
Learned trial court vide the order dated 21.7.2022 has dismissed the application of the accused applicant under Section 311 Cr.P.C. to recall the witnesses PWs 1 to 8 for cross examination. All the said witnesses were examined. However, counsel for the accused-applicant did not cross examine them at any point of time. After completion of evidence of witnesses, the case was fixed for statement of the accused under Section 313 Cr.P.C. The case is remain pending since 2008. The learned trial court has recorded in detailed and all the prosecution witnesses were examined and opportunity was given for cross examination but counsel for the accused applicant did not cross examine them.
Considering the fact that case is related to MP/MLA and as per direction of the Supreme Court in Ashwini Kumar Upadhyay vs Union of India and others decided on 10.08.2021 in Writ Petition (C) No.699 of 2016, the MPs/MLAs' cases are to be decided on priority basis, learned trial court has rejected the said application.
Aggrieved by the said order, learned counsel for the accused-applicant has approached the revisional court by filing Criminal Revision No.222 of 2022 and the said criminal revision has also been dismissed by a detailed order dated 6th August, 2022.
If an accused does not want to cross examine the witnesses, the court cannot force to cross examine such witness. Two impugned orders would disclose that after recording the statement of prosecution witnesses, every accused was given opportunity to cross examination the witnesses. Some accused have cross examined but the accused applicant did not choose to cross examine.
Considering the conduct of the accused applicant and also taking into account that the case is pending since 2008, this Court find that the impugned orders do not suffer from any infirmity or illegality which requires interference by this Court in exercise of jurisdiction under Section 482 Cr.P.C. This application is devoid of merit and substance and is hereby dismissed.
Order Date :- 28.1.2023 A.Kr.