Anil Kumar vs State of U.P.

T.P. Garg, J.—Heard Sri A.K. Shukla, learned Counsel for the revisionist and learned A.G.A. for the State. Both have agreed that this revision be disposed of finally at this stage.

The applicant is aggrieved from the orders dated 1.3.1997 and 18.3.1997 passed by the Judicial Magistrate IInd, Ballia, whereby his application for cross-examination of Doctor witness was rejected. The case of the applicant is that his counsel was busy in some other court and could not come in the Court of the Judicial Magistrate IInd, Ballia to cross-examine the doctor witness and that the applicant was prepared to bear the expenses of the doctor witness, but the court did not grant an adjournment to cross-examine the witness.

From a perusal of the impugned orders, it is made out that the presence of the doctor witness was secured by the trial Magistrate after much efforts and even non-bailable warrants had to be issued against the said witness and he had also to be proceeded against u/s 350, Code of Criminal Procedure Moreover, the proceedings u/s 82, Code of Criminal Procedure were also initiated and it is only after all this exercise that the presence of the witness could be secured. It is indeed unfortunate that the learned Counsel representing the accused in the trial court did not opt to cross-examine the witness although the presence of the witness was secured with so much of efforts. But then, taking the explanation furnished by the learned Counsel for the revisionist in the Court that the counsel representing the accused in the lower court was busy in some other court to be true and the submissions made by the learned Counsel for the revisionist in this Court that only one adjournment be granted for the purpose at the expenses of the accused and that he would not pray for any other adjournment for the purpose and for which, the learned A.G.A. for the State has no serious objection, it is hereby directed that the learned trial Magistrate shall allow the accused only one adjournment to cross-examine the doctor witness and for which, the accused would first deposit the expenses, which will be assessed by the court, within a period of 15 days from today and thereafter, the trial court shall fix a date for cross-examination of the doctor witness by the revisionist and for which purpose, the necessary notices would be sent to the witness to appear in the court. It is made clear that no more adjournment would be given to the accused for the purpose. This concession is granted only in view of the statement of the learned Counsel for the applicant made in the court that he would not ask for any more adjournment and also because it would be in the interest of justice and fair trial that the accused gets an opportunity to cross-examine the doctor witness, which is so very necessary for a just decision of the case.

With the aforesaid observations and directions, this revision petition is accepted and the impugned orders are set aside.