Rakesh and Others vs State of U.P. and Another

Ravindra Singh, J.—Heard Sri Radhey Shyam Shukla, learned Counsel for the applicants and learned A.G.A.

It is contended by learned Counsel for the applicants that in the present case, the applicants have filed an application u/s 311, Cr. P.C. mentioning therein specific points on which the cross-examination of P.W. 1 and P.W. 2 is essentially required for the just decision of the case. The same has been allowed by the trial court vide order dated 15.1.2009 at the cost of Rs. 500. The applicant has deposited the cost. Thereafter the first informant moved an objection that the applicants may be directed to supply the list of questions on the specific points, the same has been allowed by learned trial court vide order dated 3.2.2009 whereas the specific questions have been already mentioned in the application u/s 311, Cr. P.C. The applicants may not be permitted to cross-examine the P.W. 1 and P.W. 2 other than the questions mentioned in the application u/s 311, Cr. P.C.

It is contended by learned Counsel for the applicants that the application dated 12.1.2009 filed by the applicants u/s 311, Cr. P.C. has been allowed by learned trial court on 15.1.2009. The application dated 12.1.2009 is containing the specific points on which the cross-examination of P.W. 1 and P.W. 2 is essentially required, after allowing such application the learned trial court has passed impugned order dated 3.2.2009 by which the application filed by the prosecution side has been allowed and the applicants have been directed to furnish the list of the questions on specific point for the purpose of cross-examination of P.W. 1 and P.W. 2. After allowing the application u/s 311, Cr. P.C., it was not proper to direct the applicants to furnish fresh list of the questions on specific points because the questions require to be cross-examined were already mentioned in the application u/s 311, Cr. P.C., which has been allowed. The trial court has committed a manifest error in passing the order dated 3.2.2009, the same is illegal, therefore, it may be set aside.

In reply to the above contentions, it is submitted by learned A.G.A. that trial court has not committed any error in passing the impugned order dated 3.2.2009 directing the applicants to furnish the list of questions on specific point to ensure the cross-examination on those questions with P.W.1 and P.W. 2. There is no illegality in the impugned order dated 3.2.2009.

Considering the submission made by learned Counsel for the applicants, learned A.G.A. for the State of U. P. and from the perusal of the record, it appears that in the present case, the applicants have filed application dated 12.1.2009 u/s 311, Cr. P.C. with a prayer to recall the P.W.1 and P.W. 2 for the purpose of cross-examination on the specific points mentioned therein, it has been allowed by the trial court after considering the specific points mentioning therein vide order dated 15.1.2009 at the cost of Rs. 500. The cost of Rs. 500 has been deposited, thereafter, the application, from the side of the prosecution has been moved with a prayer that the applicants may be directed to furnish the list of questions on specific points for the purpose of the cross-examination of P.W. 1 and P.W. 2. Learned Additional Sessions Judge/ F.T.C. No. 8, Shahjahanpur has allowed the application of the prosecution and applicants have been directed to furnish list of questions on specific points which require cross-examination with P.W. 1 and P.W. 2. The trial court has already allowed the application u/s 311, Cr. P.C. vide order dated 15.1.2009 in which specific points are clearly mentioned after allowing of such application. It was not proper for the trial court to direct the applicants to furnish fresh list of questions for the purpose of cross-examination of P.W. 1 and P.W. 2. The trial court has committed a manifest error by directing the applicants for furnishing list of questions whereas the questions were already mentioned in the application dated 12.1.2009, which has already been allowed by the trial court. The impugned order dated 3.2.2009 is illegal and is hereby set aside.

However, the trial court is directed to pass fresh order on the application filed by O. P. No. 2 after hearing both the parties.

With this direction, the application is finally disposed of.