State of U.P. vs Ram Singh & Ors.

J. C. Mishra, J.—Heard learned A.G.A. and learned counsel for the opposite parties.

This revision is directed against the order dated 5697 passed by 1st Additional Sessions Judge, Agra allowing the application of the accused for recall of the witnesses for cross examination. It appears that Ram Jati prosecution witness No. 1 was examined on 31791 whereas prosecution witness No. 2 was examined on 201291. On these dates the accused Virendra Singh and Ajit Singh were not personally present. They were granted exemption for personal appearance through their counsel.

It appears that the prosecution filed some documents. The accused filed an application for further crossexamination of the witnesses in the light of the documentary evidence. The said application was rejected after hearing the parties. The accused acquiesced. After the close of the prosecution evidence the accused examined a defence witness. Thereafter while the argument was at closing stage the accused filed an application for recall of the witnesses invoking the powers of the Court under Section 311, Cr. P.C. It was stated that some question regarding possession over the fields and injuries were necessary.

The learned Judge allowed the application on two considerations; firstly it was observed that two accused persons were not present on the date when the said prosecution witnesses were examined and crossexamined. However, learned Judge failed to notice that they were granted exemption through their counsel on their own request. The other two accused were present. It has not been stated that there was any conflict of interest between the two accused who were present and the other two accused whose personal attendance was dispensed with. In my opinion, the mere absence (if the accused on the date of the crossexamination was not sufficient ground for permitting further crossexamination. Moreover, the prayer for crossexamination was made after a period of about 56 years. The learned Judge failed to consider the previous order by which the prayer of the accused in this regard was rejected. In my opinion, the same prayer ought not lo have been considered invoking the powers under Sect ion 311.Cr.PtC.

The learned counsel for the opposite party contended that this revision has become in fructuous. He contended by this lime the witnesses must have been examined. However, no such fact has been slated in the affidavit. From the order dated 24398, it cannot be inferred that the witnesses had been crossexamined.

The revision is allowed. The impugned order permitting cross examination of the witnesses is set aside. However, if in pursuance of the order the witnesses or any of the two witnesses have been examined the same shall remain part of the record and shall be considered.

The learned Additional Sessions Judge is directed to hear the parties counsel and decide the trial as early as possible.

Revision allowed.