Hari Om Sharma vs State of U.P. and Another

S.C. Agarwal, J.—Learned Counsel for the Petitioner is permitted to make correction in the prayer of the writ petition.

The order passed by A.C.J.M., Court No. 8, Bareilly in Criminal Case No. 1384 of 2007, State v. Hari Om, u/s 304A, I.P.C., P.S. Killa. district Bareilly and order dated 5.5.2010, passed by the Sessions Judge, Bareilly in Criminal Case No. 189 of 2010 are under challenge in this writ petition.

Heard learned Counsel for the Petitioner and learned A.G.A. for the State.

Since the impugned orders arises out of a police case, there is no need to issue notice to the Respondent No. 2. The application u/s 311, Code of Criminal Procedure moved by the Petitioner for recalling P.W. 1 for cross-examination was rejected by the Magistrate and the revision was also dismissed.

It appears that 4.9.2009 was fixed for prosecution evidence. On that date, an application for exemption from personal appearance was moved by the Petitioner, which was allowed. Examination-in-chief of Ashok Kumar (P.W. 1) was recorded. Counsel for Petitioner remained absent and therefore, opportunity for cross-examination was closed. Subsequently, an application u/s 311, Code of Criminal Procedure was moved by the Petitioner for recalling P.W. 1 for cross-examination, which was dismissed by the Magistrate and the revision was also dismissed.

The orders passed by learned A.C.J.M. and learned Sessions Judge cannot be sustained. The ground given by the Magistrate is that the application for exemption was moved by the accused but his counsel was also not present. If the counsel was not present, the Magistrate was free to reject the application for exemption and could have taken coercive steps to procure the attendance of the Petitioner but the examination-in-chief P.W. 1 could not have been recorded behind the back of the accused or his counsel. Further, it is established law that no one should be condemned unheard. If the opportunity for cross-examination of P.W. 1 is closed, it would cause prejudice to the Petitioner. In my opinion an opportunity should have been granted to the Petitioner for cross-examination of P.W. 1.

The writ petition is allowed. Order dated 6.4.2010, passed by the Magistrate and order dated 5.5.2010, passed by the Sessions Judge are quashed. The application u/s 311, Code of Criminal Procedure moved by the Petitioner stands allowed and the learned Magistrate is directed to provide opportunity to the Petitioner for cross-examination of P.W. 1. Thereafter, the case shall proceed in accordance with law.