Vikash vs State Of Uttarakhand And Another

Sharad Kumar Sharma, J

The revisionist is an accused and under trial. He is being tried for Sessions Trial No. 85 of 2017 'State vs. Vikash' for the offence under Sections 363, 366A, 376 IPC and Section 3/4 of POCSO Act. When the proceedings of the trial commenced and it reached the stage of recording of evidence of the witness of the prosecution, the examination of PW3 had commenced and it was recorded on 11.04.2018. On that date on the conclusion of the recording of the statement of PW3, the revisionist has not cross-examined the PW3 and consequently, has prayed for fixation of yet another date for cross examining the PW3. Consequently, the Court on the request of the revisionist himself has fixed the date for 18.04.2018. On the said date fixed, i.e. 18.04.2018, the PW3 was present in the court making herself available to be cross examined, but on the date fixed on 18.04.2018, at the request of the revisionist himself, he has sought an adjournment, and did not cross examining PW3. Consequently, the Court has fixed 27.04.2018 on his request as the date fixed for cross-examination of PW3 the revisionist filed an adjournment application paper No. 42kha on the ground that his son was ailing.

This sequence of adjournments of date by the revisionist and PW3 consistently making herself available to be cross-examined by the revisionist, continued thereafter even on 08.05.2018, 16.05.2018 and lastly when on 16.05.2018 the adjournment was sought by the revisionist by filing an application paper no. 44 kha the court has given an opportunity to the revisionist to cross-examine the PW3 on 04.07.2018. On the scheduled date, i.e. 04.07.2018, when PW3 had made herself available to be cross-examined by the revisionist, it was rather for the fifth time consecutive adjournments was sought by the revisionist and he had not cross-examined PW3 despite of various opportunities being granted and consequently the court below has closed his opportunity to cross-examine PW3 on 04.07.2018. Relevant portion of the judgment in this regard is quoted hereinbelow:

"लंच बाद पुनः प्रस्तुंत हुई। अभियुक्त के विद्वान अधिवक्ता जिरह के लिये पुकार पर हाजिर नहीं हैं। समय 4:06 PM ..........जबकि पुकार पर जिरह के लिये कोईै उपस्थित नहीं है। PW3 से अभियुक्त का जिरह का अवसर समाप्त किया जाता है। पत्रावली वास्ते शेष साक्ष्य अभियोजन दिनांक 13.07.18 को पेश हो।"

It was after the closure of an opportunity to cross-examine PW3 the revisionist has invoked the provisions contained under Section 311 Cr.P.C. praying for that PW3 may be summoned and the revisionist may be permitted to cross-examine her and it is this application, which was submitted by the revisionist on 09.08.2018, i.e. almost after a lapse of one month from the date of closure of his opportunity to cross-examine on 04.07.2018 of PW3. The said application came up for consideration before the Sessions Court and the Sessions Court by the impugned order dated 05.10.2018 has rejected the application holding thereof that since despite of various opportunities being provided the revisionist had availed various opportunities to cross-examine PW3 and it is not that a deprivation of an opportunity to cross-examine PW3 was on account of any mistake by the prosecution or by the Court itself, but rather this depriviation has been purchased by the revisionist by not availing the opportunity given to him and then seeking consecutive adjournments almost on as many as five occasions of cross-examination of PW3, and that too the sincerity of revisionist is also reflected from the fact that after the opportunity to cross-examine PW2 was closed on 04.07.2018 the application under Section 311 Cr.P.C. itself was filed after a lapse of one month thereafter. The application of the revisionist under Section 311 of Cr.P.C. would be violative and contrary to the provisions contained under the second proviso to Section 309(2), which is quoted hereunder:

"309. Power to postpone or adjourn proceedings.

(2) If the Court, after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody: Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time: Provided further that when witnesses are in attendance, no adjournment or postponement shall be granted, without examining them, except for special reasons to be recorded in writing: 1 Provided also that no adjournment shall be granted for the purpose only of enabling the accused person to show cause against the sentence proposed to be imposed on him.]"

Hence, in that view of the matter, the reason as assigned by the revisional court of rejecting the application under Section 311 Cr.P.C. and thereby declining to exercise its discretion to call upon the witness for his re-examination or cross-examination as prayed for, cannot be said to suffering from any apparent vices or error. Though this Court is not inclined to interfere in the revision, but ultimately an objection has been raised by the Government Advocate that the revision as against the rejection under Section 311 Cr.P.C. itself would not be maintainable because the nature of Order, under Section 311 Cr.P.C. it amounts to be an interlocutory order and hence, it is C482 application which would be maintainable and the revision would be barred by sub-section (2) of Section 397 of Cr.P.C, which is quoted hereunder:

"397. Calling for records to exercise powers of revision.

The powers of revision conferred by sub- section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding."

While dismissing this revision after having observed the arguments, which has been extended by the parties, this revision is dismissed with a liberty open to the revisionist to file the C482 application, if so advised. Any observation, which has been made with regards to the proceedings, which has been undertaken before the court below and the diligence of the revisionist and which has been argued by the counsel and observed by this court in the aforesaid order was only for the purposes to record a finding in relation to the argument extended by the parties, it may not be taken as to be a determination made by the court at this stage when the C482 application, if at all filed by the revisionist, is considered for arguments before the Court.

Accordingly, the revision is dismissed as not maintainable due to bar of Section 397(2) of Cr.P.C.