Allahabad High Court
Mohd Abdullah vs State Of U.P. on 18 March, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:48218 Court No. - 86 Case :- APPLICATION U/S 482 No. - 8432 of 2024 Applicant :- Mohd Abdullah Opposite Party :- State of U.P. Counsel for Applicant :- Abhay Kumar,Manoj Kumar Srivastava Counsel for Opposite Party :- G.A. Hon'ble Manoj Bajaj,J.
Applicant has filed this application under Section 482 Code of Criminal Procedure with the prayer to set aside the order dated 06.02.2024 passed by the Additional Sessions Judge, Fast Track Court-II, Shahjahanpur in Sessions Trial No. 331 of 2023; titled State of U.P. vs. Mohd. Abdullah, under Sections 376(2)(n), 506 IPC, Police Station Sadar Bazar, District Shahjahanpur, whereby his application dated 06.02.2024 seeking exemption from personal appearance was rejected, and the cross examination of PW-1 has been closed by court order.
Learned counsel for the applicant has argued that during the course of hearing, the victim was examined by prosecution as PW-1, however, at that stage, certain questions could not be put to the witness, therefore, subsequently an application was moved by the applicant-accused under Section 311 Cr.P.C. seeking recall of the witness for cross-examination and the said application was allowed vide order dated 21.10.2023 (Annexure No. 4). He submits that, thereafter, the applicant had moved an application seeking exemption from personal appearance on the ground that he is not well, but the trial court not only dismissed the said application, but also proceeded to close the cross examination of PW-1. He submits that the trial court has not carefully examined the facts and circumstances of the case and has proceeded to pass the extreme harsh order and it would result in prejudice to the accused. He prays that the impugned order be set aside and the applicant be granted only one opportunity to conclude the cross-examination of the PW-1.
The prayer is opposed by the learned State Counsel, who has argued that the applicant has failed to avail the benefit of the order dated 21.10.2023 as despite presence of the witness in the court, the defence has not cross examined her. Learned State Counsel has referred to the impugned order to contend that the same is based upon proper appreciation of material on record, therefore, no interference is called for by this Court by exercise of power under Section 482 Cr.P.C.
After hearing the learned counsel for the parties and considering their submissions, this Court finds that after acceptance of the application under Section 311 Cr.P.C., the case was fixed for 27.10.2023 for cross examination of the PW-1, but on the said date, the applicant had been granted the exemption from personal appearance. On the next date, i.e. 3rd November, 2023, the applicant was absent, therefore, the court had adjourned the case to 8th November, 2023 and on the said date, non-bailable warrants were issued to secure his presence.
A perusal of the zimni orders would reveal that the said warrants were recalled on 22.11.2023, but, thereafter, again he kept on seeking exemption from personal appearance. Since, despite various opportunities granted by the trial court, the accused-applicant failed to cross examine the PW-1, therefore, the court has rightly passed the impugned order and closed the cross examination of PW-1. The order has been passed keeping in view the conduct of the accused which led to the postponement of the cross-examination of the PW-1 for a long time.
At this stage, learned counsel for the applicant pressed for only one opportunity to conclude the cross-examination of PW-1, therefore, while allowing the one opportunity to the applicant, this court deems it appropriate to burden the accused-applicant with a cost of Rs. 20,000/- to be deposited with the District Legal Services Authority, Shahjahanpur.
Consequently, it is ordered that in case, the applicant deposits the costs within the period of next 10 days, he be allowed one opportunity to conclude the cross examination of PW-1 and the said date shall be fixed by the trial court.
Here, it is made clear that in case of non-deposit of the costs within the stipulated period, the application shall be deemed to be dismissed.
With the above observation, the application is disposed of.
Order Date :- 18.3.2024 Brijesh