Allowed

Vipin Jatav v. State of U.P. and Another

Allahabad HC9 Jan 2020A482/41914/2019

Case brief

AI extract

What is this about?

In an application under Section 482 Cr.P.C., this court set aside the trial court's order denying an accused the opportunity to cross-examine prosecution witnesses. The court held that the trial had been delinquent in expediting proceedings despite multiple warrant issuances, and the accused should not suffer for counsel's failure to appear on specific dates.

What did the court decide?

Impugned order set aside; witnesses recalled for cross-examination; trial to be expedited within four months of certified copy production.

Vipin Jatav Vs State of U.P. and Another — Child Sexual Offences (POCSO) | Allahabad HC (2020)

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Court No. - 66 Case :- APPLICATION U/S 482 No. - 41914 of 2019 Applicant :- Vipin Jatav Opposite Party :- State of U.P. and Another Counsel for Applicant :- Manoj Kumar,Manish Kumar Counsel for Opposite Party :- G.A.

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Hon'ble Rajul Bhargava,J.

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Supplementary affidavit filed by learned counsel for the applicant is taken on record.

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Heard Sri Manish Kumar, learned counsel for the applicant as well as learned A.G.A. for the State-opposite party no.1 and perused the material placed on record.

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This application under Section 482 Cr.P.C. has been filed for quashing the order dated 23.10.2019 passed by Additional District Judge, Court No.VIII, Moradabad in Session Trial No.257 of 2016 (State of U.P. vs. Vipin Jatav), arising out of Case Crime No.409 of 2015, under Sections 376(2)(1), 506 I.P.C. and Section 5M/6 Protection of Children from Sexual Offence Act, P.S. Bilari, District Moradabad.

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Facts in brief which give rise to the present application are that the applicant was nominated as an accused for an offence under Sections 376, 506 I.P.C. and 3/4 POCSO Act for committing rape on the prosecutrix aged about 10 years on 2.12.2015. After investigation, charge-sheet was laid before the Special Judge (POCSO Act) on 16.2.2016 and the applicant was remanded to custody under Section 309 Cr.P.C. and since then the applicant is languishing in jail. The charges were framed on 29.2.2016 and the matter was posted for prosecution evidence on 14.3.2016. Certified copy of the order-sheet reflects that from 11.4.2016 bailable warrants were issued against the witnesses shown in column nos. 1 and 2 of charge-sheet of Rs.5,000/- and as the witnesses did not turn up same order was passed on 23.4.2016, 6.5.2016, 19.5.2016, 31.5.2016, 15.6.2016, 28.6.2016, 11.7.2016, 27.7.2016, 20.9.2016, 5.10.2016, 2.12.2016, 16.12.2016, 2.1.2017 and even on subsequent dates the witnesses did not turn up and on 30.1.2017 statement of P.W.-1, Smt. Shanti Devi, the witness of recovery of clothes of the prosecutrix, was recorded. Thereafter, the witnesses again did not turn up for more than one and a a half dozen dates. However, examination-in-chief of P.W.-2, prosecutrix was examined on 15.2.2018. Statement of P.W.-3, Smt. Poonam was recorded on 29.5.2018, P.W.-4, Dr. Smt. Nirmala Pathak was recorded on 31.8.2018 and Statement of P.W.-5, Parvej Ali was recorded on 22.1.2019. It transpires that the defence counsel

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appearing for the applicant only cross-examined P.W.-1 and thereafter he did not appear for cross-examining P.W.s 2, 3, 4 & 5, therefore, without any cross-examination the court was left with no other option but to close the opportunity for crossexamination. Since then the prosecution evidence is still continuing as is reflected from the order-sheet. An application was moved for recalling the witnesses of fact and formal witnesses on behalf of the applicant by another counsel on 9.10.2019 that due to certain circumstances the counsel appearing for the applicant did not cross-examine the aforesaid witnesses and in the interest of justice the cross-examination of the witnesses is absolutely necessary. The said application was rejected by the learned Judge vide impugned order dated 23.10.2019 mainly on the ground that the trial under the POCSO Act should be decided speedily and therefore without assigning any other reasons rejected the application for crossexamination of P.W.s 2, 3, 4 & 5.

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Learned counsel for the applicant has argued that the applicant is a very poor person and is languishing in jail since December, 2015. He has argued that the ground on which the application of the applicant for recalling the witnesses for cross-examination is wholly unjustified, inasmuch as, the trial court has completely overlooked that after framing of charge on 29.2.2016 continuously the court issued bailable warrants against the witnesses cited in the charge-sheet, however, only on 30.1.2017 statement of formal witness of recovery was recorded. Thereafter also as noted above several dates were fixed but the witnesses did not turn up and the statement of the prosecutrix was recorded on 15.2.2018 and the learned Judge after examination-in-chief has noted that the counsel for the applicant did not turn up for cross-examination, therefore, the opportunity for cross-examination is closed, similar such observation is made in respect of remaining prosecution witnesses P.W.s 2, 3, 4 & 5.

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It has been argued that it seems that the learned trial Judge was completely oblivious of the fact that the applicant is in jail since 2015 and for about three years' sufficient opportunity was given to the prosecution for adducing prosecution evidence and from the order-sheet it does not appear that the court below really wanted to decide the trial speedily, and therefore, if an opportunity of cross-examining the aforesaid witnesses is denied to the applicant who is already facing a grave charge of committing rape not only shall suffer irreparable loss and injury but shall also not be able to discredit the testimony of the prosecution witnesses. Therefore, he may be afforded an opportunity to cross-examine P.W.s 2, 3, 4 & 5. It has been further argued that the applicant should not be made to suffer

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for the remissness of the lawyer who did not appear to crossexamine the witnesses. The applicant is a poor villager and has no knowledge of legal consequences, therefore, he cannot be made to suffer for the act of his counsel.

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Per contra, learned A.G.A. strongly opposed the prayer made on behalf of the applicant and submitted that the trial has gone to a great length, therefore, if cross-examination is permitted it would further delay the trial, especially, when the offence is under POCSO Act. However, he could not dispute that still the trial is fixed for recording of prosecution evidence.

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As the question involved in the present case is a pure legal one as the opportunity of cross-examining is denied to the applicant, therefore, I deem it fit to dispose of the present application without issuing notice to opposite party no.2 with the assistance of learned A.G.A. appearing for the State.

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I may record that the impugned order passed by the learned Judge refusing the opportunity to recall P.W.s 2, 3, 4 & 5 for cross-examination dehors any plausible reasons for its rejection. It is true that the cases of rape under the POCSO Act should be decided with expedition, but from the facts it appears that the trial court was in no hurry and had afforded sufficient time to prosecution to adduce evidence and on more than one and a half dozen dates bailable warrants were issued against the witnesses.

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In my considered opinion, the impugned order dated 23.10.2019 passed by Additional District Judge, Court No.VIII, Moradabad is not justifiable and sustainable in the eyes of law and the same is, accordingly, set-aside .

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The trial Judge shall recall the witnesses P.W.s 2, 3, 4 & 5 and if required coercive action be taken against the witnesses for securing their attendance.

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It is also made clear that if the witnesses appear and are present before the court, in that eventuality the defence counsel shall cross-examine the witnesses and the case shall not be adjourned unless it is absolutely necessary. The trial Judge is further directed to expedite the aforesaid trial and conclude the same expeditiously strictly in accordance with law, preferably within a period of four months from the date of production of a certified copy of the order.

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Criminal Misc. Application under Section 482 Cr.P.C., accordingly stands allowed .

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Order Date :- 9.1.2020/ Vikas

Vipin Jatav v. State of U.P. and Another

Case brief

What is this about?

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Vipin Jatav v. State of U.P. and Another

Case brief

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