Pankaj Singh and Another vs State of U.P.

R.K. Rastogi, J.—This application has been filed under Section 482 Cr. P.C. to set aside the order dated 1552007 passed by the Additional Sessions Judge, Fast Track Court No. 2, District Bhadohi/Gyanpur, (now Sant Ravi Das Nagar in Session Trial No. 76 of 2006 (State v. Pankaj Singh and Ors.).

Heard Learned learned Counsel for the applicant and learned A.G.A. for the State.

The facts relevant for the disposal of the application are that the aforesaid S.T. No. 76 of 2006 under Section 394 I.P.C. is pending against the accused persons for trial in the above Court. On 1452007 the statements of S.D. Hawaldar Singh, who had partly investigated the case, was recorded as PW9. He was crossexamined by the learned Counsel for the other coaccused, but he could not be crossexamined by the learned Counsel for the applicants on that date, and as no adjournment was sought on their behalf, the witness was discharged. Thereafter, the present applicants moved an application under Section 311 Cr.P.C. for recall of that witness to crossexamine him. It was alleged in the application that Shri Vijay Nath Pandey learned Counsel for the applicant No. 1 was busy in another Court and Shri Deepak Kumar Srivastava, learned Counsel for the other accused applicant was also busy in the Court of Chief Judicial Magistrate they could not appear to crossexamine the witness. The application was however rejected by the learned Additional Session Judge of the Fast Track Court No. 2, Bhadohi,vide order dated 155 2007. Aggrieved, with that order the present applicants have filed this application under Section 482 Cr.P.C.

I have heard learned learned Counsel for the applicants and learned A.G.A. for the State at the admission stage and I am deciding it on merits at the stage of admission.

No copy of the recall application has been filed but it appears from perusal of the order passed by the learned Additional Session Judge of the Fast Track Court that this recall application was moved under Section 311 Cr. P.C.

I am of the view that the proper remedy for the applicant was to move an application for crossexamination of the witness and not one under Section 311 Cr.P.C. which confers power upon the Court to call any witness in the interest of justice if Court is of the view that his statement is essential for just decision of the case. It is the discretion of the Court, and no party can seek examination of any witness under this Section as a matter of right. So the prayer for recalling the witness has been rightly rejected under Section 311 Cr.P.C.

However, it is to be seen that Shri S.D. Hawaldar Singh PW 9 had partly investigated the case. The Investigation Officer of the case is an important witness. So an opportunity must be provided to the applicants to crossexamine him.

However, since learned Counsel for the applicants did not appear on 1452007 when his statement was recorded and since they did not seek any adjournment, the witness was discharged. Hence, now if they are willing to recall that witness for crossexamination. I am of the view that they should bear the expenses for calling S.D. Hawaldar Singh, PW 9.

I, therefore, order that the trial Court shall recall S.D. Hawaldar Singh PW 9 for crossexamination by the applicants on their expenses for coming from the place of present posting to city of Sant Ravi Das Nagar and back. He shall be entitled to D.A. also. The expenses shall be shared equally by both the applicants and the learned Counsel for the applicant while moving an application for summoning the aforesaid witness for cross examination shall mention in their application that they have got the expenses of the witness deposited with them. The expenses shall be paid to the witness on his arrival for cross examination.

The application under Section 482 Cr.P.C. is finally disposed off with the above observations.