Allahabad High Court
Indrajit vs State Of U.P. And Anr on 1 October, 2019
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 65 Case :- APPLICATION U/S 482 No. - 36716 of 2019 Applicant :- Indrajit Opposite Party :- State Of U.P. And Anr Counsel for Applicant :- Shishir Kumar Tiwari Counsel for Opposite Party :- G.A. Hon'ble Dinesh Kumar Singh-I,J.
Heard Sri Shishir Kumar Tiwari, 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 order dated 16.09.2019 passed by Additional District and Session Judge/FTC 1st Gautam Budh Nagar in S.T. No. 682 of 2011 (State vs. Indrajit) arising out Case Crime No. 274 of 2011 under section 376 and 506 IPC, Police Station, Phase II Noida, Gautambudh Nagar and also a prayer is made to stay the proceedings in this case till the disposal of this application.
It is argued by the learned counsel for the applicant that the applicant wants to put several questions to PW2, who is victim in this case for which an application under section 311 Cr.PC. was moved being Application No. 70 Kha, which has been dismissed by the trial court erroneously. He has further apprised the court that the prosecution evidence has been closed and the case is listed for defence evidence. Reason for such great delay is pointed out to be on account of falling sick.
Learned A.G.A. has vehemently opposed the prayer for quashing the impugned order and has pointed out that the trial court has noted in the impugned order that indirectly all the questions, which are proposed to be put to the said witness, have already been answered in her earlier cross-examination and regarding it all the details have been mentioned above by the trial court in the impugned order, hence impugned order deserves to be upheld and this application deserves to be dismissed.
I have gone through the impugned order. It is recorded in it by the trial court that one application 56 Kha was moved from the side of the accused on 24.09.2014 praying therein that he wanted PW2/victim to be re-summoned for being cross-examined as five questions were required to be asked and another application 61 Kha was moved from his side on 20.3.2015 with the prayer that he wanted to put 10 questions to the said victim for which the victim was prayed to be summoned. It is further mentioned in the impugned order that the evidence of the prosecution was closed on 4.10.2013 and the case was fixed in defence evidence on 12.11.2013 but no evidence was extended from the side of the accused rather an application under section 311 Cr.PC has been moved which was disposed of vide order dated 29.08.2019. After disposal of the said application, the accused approached High Court by filing Writ Petition NO.37649 of 2014 (Indrajit vs. State of U.P. ), which was dismissed vide order dated 09.09.2014 and it was directed therein that if the accused-applicant moves any application the same shall be disposed of in accordance with law. Thereafter, the accused moved the above two applications 56Kha and 61 Kha but subsequently he has not pressed the application 56 Kha on 24.11.2015 and accordingly the same was dismissed and application 61 Kha was dismissed vide court's order dated 13.1.2016. Thereafter, again the accused applicant moved an application 70Kha and continuously obtained adjournments for its disposal. As regards, the questions which were proposed by the accused-applicant to put to the victim, opinion has been expressed by the trial court that in the cross-examination of the victim, all the answers to the said questions have come on record. And that if any infirmity is left in the evidence adduced from the side of the prosecution or from the side of the defence, to fill up the said lacuna, no application can be allowed under section 311 Cr.PC and has further opined that the present application has been moved with a view to delaying the disposal of the case.
Perusal of the order makes it very clear that case is listed in defence as the prosecution evidence was closed as far back as in the year 2013 whereafter this application has been moved with considerable delay without any justifiable reason. It is settled that any application under section 311 Cr.P.C. can be allowed by the trial court only with a view to recall or reexamining any person already examined if evidence of such person is essential for just disposal of the case. The trial court has exercised its discretion in appropriate manner. I do not find any infirmity in the impugned order, hence application deserves to be dismissed and is accordingly dismissed.
Order Date :- 1.10.2019 AU