Manoj vs State of U.P. and Another

R.K. Rastogi, J.—This is an application u/s 482, Cr. P.C. to quash the order dated 4.2.2008 passed by the Additional Sessions Judge Court No. 1, Bulandshahr in Sessions Trial No. 736 of 2006, State v. Manoj and others.

I have heard learned Counsel for the applicant as well as the learned A.G.A. for the State at the admission stage. Since the point involved in the present case u/s 482, Cr. P.C. is legal one, I am deciding it on merits at the stage of admission as agreed by the parties. No noice is being sent to the complainant opposite party No. 2 as it is a State case u/s 302/34, I.P.C. and the State is properly represented through learned A.G.A. and it is not necessary to hear the complainant on that legal point.

The facts relevant for disposal of this application are that Session Trial No. 736 of 2006 is pending before the Additional Sessions Judge, Bulandshahr Court No. 1 against the accused-applicant Manoj and co-accused Anil. The prosecution evidence has been completed in the above session trial. The statement of the accused has also been recorded and the case is listed for production of defence evidence. At this stage, the accused moved two applications Paper No. 56B and 57B. In Application No. 56B, it was stated that the Ballistic Expert''s Report had been filed by the prosecution in the aforesaid case at the close of its evidence on 15.10.2007. When the statement of P.W. 8 Mr. Balveer Singh, S.I. was being recorded. The allegation of the accused-applicant is that since this report of the Ballistic Expert regarding the fire arm was filed at the close of prosecution evidence, he could not get an opportunity to cross-examine any witness in the light of that report. It was also alleged that the said report has not come from proper custody and so it was prayed that the person who had filed this report and P.W. 3 Dr. R. K. Daware (as prayed on 57B) should be summoned for cross-examination in the light of the Ballistic Expert''s Report. This prayer was refused by the learned Additional Sessions Judge on the ground that it had been moved with a view to delay disposal of the session trial in which the accused are detained in jail. So, the applications were rejected with this observation that at the time of writing of judgment, if the Court is of the view that further examination of any witness is necessary, the Court shall pass suitable orders. Aggrieved with that order the accused-applicant has filed this application u/s 482, Cr. P.C.

It was submitted by the learned Counsel for the applicant that the Ballistic Expert''s Report was not filed by the prosecution at the initial stage of the case, but it was filed at the stage of close of prosecution evidence and so the accused could not get an opportunity to cross-examine any prosecution witness in the light of that report. As such when this report was filed at the close of the prosecution evidence, I am of the view that the accused must get an opportunity to cross-examine the prosecution witnesses in the light of the Ballistic Expert''s Report, and the learned Presiding Officer of the Court erred in law by depriving the accused-applicant of the opportunity to cross-examine the prosecution witnesses in the light of that report. The interest of justice requires that the accused-applicant should be permitted to cross-examine the prosecution witnesses in the light of that report.

The learned Counsel for the accused-applicant submits that he wants to cross-examine two persons only. One who has brought the Ballistic Expert''s Report for filing it in the Court as his allegation is that it had not come from the proper custody, and the other P.W. 3 Dr. Daware on this Ballistic Expert''s Report only. I am of the view that he should be given an opportunity to cross-examine the aforesaid two witnesses on the Ballistic Expert''s Report only.

The application u/s 482 is, therefore, allowed and the impugned order dated 4.2.2008 passed by the learned Additional Sessions Judge on the applications of the accused Papers No. 56B and 57B is set aside. Both these applications are allowed to this extent only that the accused-applicant is permitted to further cross-examine two persons. One who has brought the Forensic Expert''s Report for filing it in the Court and the other Dr. Daware P.W. 3, on the Ballistic Expert''s Report only.

Let a copy of this order be issued to learned Counsel of the applicant within 24 hours.