Allahabad High Court
Nitte @ Nitesh vs State Of U P And Another on 24 November, 2022
Author: Subhash Chandra Sharma
Bench: Subhash Chandra Sharma
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 85 Case :- MATTERS UNDER ARTICLE 227 No. - 10401 of 2022 Petitioner :- Nitte @ Nitesh Respondent :- State Of U P And Another Counsel for Petitioner :- Arun K. Singh Deshwal,Anil Kumar Dubey Counsel for Respondent :- G.A. Hon'ble Subhash Chandra Sharma,J.
Heard learned counsel for the petitioner as well as learned A.G.A. for the State and perused the record.
The present petition under Article 227 of the Constitution of India has been moved with prayer to stay the further proceeding of Session Trial No.639 of 2019 (State vs. Baleshwar and others) arising out of Case Crime No.542 of 2019, under Sections 147, 148, 149, 302, 120 I.P.C., Police Station Dadri, District Gautam Buddh Nagar during the pendency of present petition.
It is submitted that in this case PW-2 Kapil was to be cross-examined before the court concerned. His chief examination was recorded but cross examination of this P.W. could not be done on account of fault on the part of the learned counsel for the petitioner and cross examination of the witness was completed by other counsels for co-accused persons. The opportunity of this petitioner was closed by the court concerned. It is also submitted that the petitioner moved the application for cross-examination of the PW-2 on the same day but it is still pending and is not being decided by the court concerned which is causing injustice to the petitioner. Therefore, requested to direct the court concerned to decide the application moved u/s 311 Cr.P.C. dated 24.03.2022 on behalf of the petitioner while affording the opportunity of cross-examination of the PW-2 Kapil.
Learned A.G.A. urged that in this case several opportunities were given to the petitioner for cross-examination of the witness but it was not done on 24.03.2022 when PW-2 Kapil was present in the court from 11:00 A.M. to 01:45 P.M. Even after several calls no one appeared for cross-examination of the witness that was the reason opportunity of cross examination was closed by the court concerned, therefore, he is not entitled for any relief.
Considering the facts and circumstances of the case, submissions made by learned counsel for the parties and from the perusal of record, it appears that the opportunity of this petitioner for cross-examination of the prosecution witness Kapil was closed on account of failure on the part of the petitioner to cross-examine the PW-2 that was the reason opportunity was closed but application for this purpose was moved on the same day which is still pending. In such a situation, the court concerned is, hereby, directed to decide the application moved by the petitioner u/s 311 Cr.P.C. while affording the opportunity to the petitioner for making cross-examination of PW-2 and the learned court may impose reasonable cost for this purpose.
Accordingly, this petition is disposed of finally.
Order Date :- 24.11.2022 Ashok Gupta