Prashant @ Sheelu Dixit Vs State Of U.P. & Another

Allahabad High Court (Single Judge)

APPLICATION U/s 482, 9953 of 2015, Judgment Date: Apr 21, 2015

Court No. - 22
A.F.R.
Case :- APPLICATION U/S 482 No. - 9953 of 2015
Applicant :- Prashant @ Sheelu Dixit
Opposite Party :- State Of U.P. & Another
Counsel for Applicant :- Rakesh Dubey
Counsel for Opposite Party :- Govt. Advocate
Hon'ble Arvind Kumar Mishra-I,J.
Heard learned counsel for the applicant and learned AGA in
opposition.
This application under Section 482 Cr.P.C. has been filed for
quashment of order dated 31.01.2015 passed by A.D.J. V,
Farrukhabad in S.T. No.161 of 2011 (State Vs. Awadesh Dixit and
others) under Sections 498-A, 304-B, 302 IPC at P.S. Mau
Darvaja, Farrukhabad.
As per factual matrix of this case some criminal proceedings were
drawn against the appellant, which proceedings culminated into
aforesaid Sessions Trial No.161 of 2011 under the aforesaid
Sections of Indian Penal Code. During the course of proceedings,
evidence for the prosecution was underway and P.W.1 Sushil
Chandra was examined by the prosecution thereafter prosecution
produced P.W.2 Pushkar Chaturvedi, who was examined-in-chief
by the prosecution on 18.11.2014 thereafter after availing
adjournment defence cross-examined P.W.2 Pushkar Chaturvedi
on 7.1.2015. This cross-examination was initially confined to one
page/one-sheet and the same remained un-concluded due to the
reason that the counsel for the accused was not feeling well and
due to which he left the court room. At this, the opportunity to
cross-examine P.W.2 Pushkar Chaturvedi by the defence was
closed. Thereafter an application 44-B was moved by the defence
under Section 311 Cr.P.C. for recall of P.W.2 Pushkar Chaturvedi
for further remaining cross-examination. The court below after
affording opportunity of hearing to the applicant as well as the
prosecution found the applicant guilty of adopting dilatory tactics
and rejected aforesaid recall application under Section 311 Cr.P.C.
Hence, this Application.
Submission has been made on behalf of the applicant that the
applicant is always willing to co-operate with the trial and the
opportunity to cross-examined P.W.2 Pushkar Chaturvedi be
given, because due to the ill health of the counsel accused cannot
be penalized. It would be most unfair under the facts and
circumstances of the case that the witness of fact produced by the
prosecution remained uncrossed by the defence. If any
adjournment is sought by the defence that would not be interpreted
to be intended to have been sought for causing delay in disposal of
the trial, therefore, one last opportunity should be given to the
defence to cross-examine the aforesaid witness.
Learned AGA has opposed the prayer so made on the ground that
it was obligatory on the part of the applicant to have crossexamined
the applicant as soon as he was produced by the
prosecution. There was no reason to leave the cross-examination
unconcluded/unfinished on 7th January, 2015 and that, too,
without moving any application for adjournment of the
proceedings. This by itself shows that the applicant acted casually
and did not avail the opportunity so given to him.
Considered above submissions as well as the facts and
circumstances of the case. No doubt, the defence has not availed
the opportunity given by the prosecution by producing P.W.2
Pushkar Chaturvedi, but it has come on record that due to ill health
of the counsel for the defence, the counsel was not able to further
cross-examine P.W. Pushkar Chaturvedi due to which instant of
client will not suffer. It appears that learned trial court with a view
to expedite the proceedings, per chance over-looked the very
cause for not concluding the cross-examination of P.W.2 Pushkar
Chaturvedi on 7.1.2015. Fair trial demands that the accused should
not be prejudiced in his rights and it is upto the trial court to
ensure that the opportunity is extended upto the last reasonable
limit and in case that reasonable limit is reached, no further
leniency is to be shown. But this reasonable limit will in each case
will be governed by facts of that particular case. No straight jacket
formula can be evolved. It appears that extreme point of closure of
cross-examination of P.W.2 Pushkar Chaturvedi has not yet
reached. It has been submitted by learned counsel for the applicant
that in case fresh opportunity is given to cross-examine P.W.2
Pushkar Chaturvedi, the defence will cross cross-examine Pushkar
Chaturvedi without any break and he will not seek any further
adjournment as and when the witness is produced for crossexamination.
Therefore, as a matter of last opportunity, it is
directed that learned court below shall afford one last chance to
the applicant accused to cross-examine P.W.2 Pushkar Chaturvedi
on a date to be fixed and in case, a date is already fixed, the
applicant shall be ready to cross-examine P.W.2 Pushkar
Chaturvedi if P.W.2 Pushkar Chaturvedi is produced in court by
the prosecution. However, it is clarified that in case P.W.2 Pushkar
Chaturvedi is not available or present in court, the court may fixed
another specific date and the applicant will on the date invariably
complete his cross-examination of P.W.2 and no further
opportunity will be given in case the defence does not avail this
last opportunity.
In view of observations made herein above, the impugned order
dated 31.01.2015 passed by A.D.J. V, Farrukhabad in S.T. No.161
of 2011 (State Vs. Awadesh Dixit and others) under Sections 498-
A, 304-B, 302 IPC at P.S. Mau Darvaja, Farrukhabad stands
modified to that extent that opportunity to cross examine P.W.2
Pushkar Chaturvedi will be afforded to the defence.
This Application under Section 482 Cr.P.C. stands disposed of
finally.
Order Date :- 21.4.2015
RK