Pankaj Singh and Avinash Singh vs State of U.P.

R.K. Rastogi, J.—This application has been filed u/s 482 Cr.P.C. to set aside the order dated 15.5.2007 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 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 ST. No. 76 of 2006 u/s 394 I.P.C. is pending against the accused persons for trial in the above Court. On 14.5.2007 the statements of S.D. Hawaldar Singh, who had partly investigated the case, was recorded as PW9. He was cross examined by the learned Counsel for the other co-accused, but he could not be cross examined 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 u/s 311 Cr.P.C. for recall of that witness to cross examine 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 cross examine the witness. The application was however rejected by the learned Additional Session Judge of the Fast Track Court No. 2, Bhadohi, vide order dated 15.5.2007. Aggrieved, with that order the present applicants have filed this application u/s 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 u/s 311 Cr.P.C.

I am of the view that the proper remedy for the applicant was to move an application for cross examination of the witness and not one u/s 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 u/s 311 Cr.P.C.

However, it is to be seen that Shri S.D. Hawaldar Singh PW9 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 cross examine him.

However, since learned Counsel for the applicants did not appear on 14.5.2007 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 cross examination. I am of the view that they should bear the expenses for calling S.D. Hawaldar Singh, PW9.

I, therefore, order that the Trial Court shall recall S.D. Hawaldar Singh PW9 for cross examination 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 DA 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 u/s 482 Cr.P.C. is finally disposed of with the above observations.