Allahabad High Court
Ram Murli Yadav vs State Of U.P. And Another on 8 February, 2023
Author: Samit Gopal
Bench: Samit Gopal
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 69 Case :- APPLICATION U/S 482 No. - 3062 of 2023 Applicant :- Ram Murli Yadav Opposite Party :- State of U.P. and Another Counsel for Applicant :- Dinkar Lal,Swetashwa Agarwal Counsel for Opposite Party :- G.A. Hon'ble Samit Gopal,J.
List revised.
Heard Sri Dinkar Lal, learned counsel for the applicant, Sri Raj Kumar Gupta, learned counsel for the State and perused the record.
The present application under Section 482 Cr.P.C. has been filed by the applicant Ram Murli Yadav with the prayer to allow the present application and quash the impugned order dated 21.12.2022 passed by the Additional Sessions Judge, Court No.1, Gorakhpur in S.T. No. 211/2016 (State Vs. Ram Murali and others) as Case Crime No. 191 of 2013, under Sections 147, 148, 149, 323, 304 IPC, P.S. Gola, District Gorakhpur by which the application under Section 311 Cr.P.C. bearing paper no. 88-kha so moved by the applicant for recall of witness/PW-1 Smt. Mahdai for further cross examination has been rejected and with a further prayer to direct the trial court to recall the witness/PW-1 Smt. Mahdai and permit the applicant to further cross examine her on the questions enumerated in the application as well as stay the further proceedings in the aforesaid case, pending in the court of Additional Session Judge, Court No.1, Gorakhpur, during the pendency of the present application.
The facts in the present case are that the applicant is facing trial of a case which is numbered as Sessions Trial No. 211 of 2016 (State of U.P. Vs. Murali and others), under Sections 147, 148, 149, 323, 304 IPC, P.S. Gola, District Gorakhpur in which the statement of Smt. Mahdai the first informant as PW-1 was recorded on 16.05.2018 after which she was cross examined on 24.10.2018 and 12.11.2018. Thereafter, Anil Yadav was examined as PW-2 on 03.01.2019 and 04.10.2019, Smt. Kusum Yadav was examined as PW-3 on 27.11.2019 and Somnath Yadav as PW-4 was examined on 09.12.2019. The applicant then moved an application for re-cross examination dated 21.01.2021 under Section 311 Cr.P.C. before the trial court which was numbered as application No. 79-Kha for recalling Smt. Mahdai PW-1 by stating that three things needs to be asked to her being the place of occurrence, as to whether the incident occurred on the road or at the door of the house and whether the persons who have received injuries were present at the time of occurrence or not and lastly if the said persons were not present at the place of occurrence then where were they. The said application came to be rejected vide order dated 21.01.2021 passed by the trial court by returning a finding that the said witness has already replied the said facts in her statement. She thus is not needed for re-cross examination. Subsequently, an application dated 30.08.2022 was again filed on behalf of the applicant with the same prayers as that of application dated 21.01.2021 in which it was stated that an application was previously filed on 21.01.2021 on which the then Presiding Officer orally said that the remaining witnesses be got examined and then an application be again filed and as such the present application is being filed. The said application was numbered as paper No. 88-Kha to the records, the same stands rejected vide order dated 21.12.2022 passed by the trial court by stating that a previous application to the said effect being application No. 79-Kha of the applicant was already rejected vide order dated 21.01.2021 passed by the trial court and as such the same is not maintainable.
Learned counsel for the applicant argued that the trial court has erroneously rejected the application dated 30.08.2022 of the applicant for summoning Smt. Mahdai PW-1 for re-cross examination vide its order dated 21.12.2022 which would cause grave prejudice to the applicant. It is argued that there are certain relevant questions which were necessary to be put to the said witness in cross examination to discredit her. The trial is not being delayed on account of the applicant. It is argued that the present application be allowed and Smt. Mahdai PW-1 be summoned again for re-cross examination.
Per contra, learned counsel for the State opposed the prayer as made.
After having heard learned counsel for the parties and perusing the records, it is evident that an application for summoning PW-1 Smt. Mahdai was filed on 21.01.2021 by the applicant which was paper no. 79-Kha to the records for re-cross examining her of three facts as mentioned in the said application. The said application stood rejected by a detailed order on 21.01.2021 by the trial court. The trial court has returned a finding that the questions which are proposed to be put to the said witness for re-cross examination have already been asked to her and have been recorded in her statement. Subsequently, an application dated 30.08.2022 to the same effect being application No. 88-Kha has been filed by the applicant stating therein that the then Presiding Officer while rejecting the previous application dated 21.01.2021 on the said date had orally stated to the applicant to file another application at a later date after the examination of the some witnesses and thus the present application is being filed. The said application stands rejected vide order dated 21.12.2022 passed by the trial court by stating that the same is not maintainable as a previous application for the same has already been rejected on merits on 21.01.2021.
In so far as the second application dated 30.08.2022 is concerned, the same is for the same prayer and reason as stated in the application dated 21.01.2021. The reason for moving the second application as stated therein is that the then Presiding Officer orally told the applicant to file the same application at a later point of time, cannot be considered to be a fresh and a new ground as an order of court is only what it writes in its order. There is no basis for stating that there was an oral direction to the applicant to move a second application at a later point of time. In so far as the issue involved is concerned, the same already stood decided vide order dated 21.01.2021 passed by the trial court which has attained finality.
In view of the same, there is no good ground made to interference in the matter and is accordingly, rejected.
Order Date :- 8.2.2023 M. ARIF (Samit Gopal, J.)