Allowed

Adil Khan v. State of U.P. Thru. Prin. Secy. Home Lko. and Another

Allahabad HC7 Jul 2023/5023/2023

Case brief

AI extract

What is this about?

In an application under Section 482 CrPC, the Court set aside the trial court's order discharging a prosecution witness and rejecting recall applications. The Court held it is obligatory to ensure the witness's presence for cross-examination after evidence-in-chief was recorded.

What did the court decide?

Impugned order setting aside proceedings and discharging witness rejected is set aside; trial court directed to ensure presence of witness for cross-examination and conclude trial expeditiously.

Adil Khan Vs State of U.P. Thru. Prin. Secy… — Criminal Trial and Appeal | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC-LKO:44055

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Court No. - 12

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Case :- APPLICATION U/S 482 No. - 5023 of 2023

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Applicant :- Adil Khan Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. And Another

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Counsel for Applicant :- Praveen Tripathi,Shakti Krishna Chaube

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Counsel for Opposite Party :- G.A.,Saurabh Kumar

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Hon'ble Rajeev Singh,J.

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Heard learned counsel for the applicant and learned counsel for the complainant as well as learned AGA and perused the record.

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The present applicant under Section 482 CrPC has been filed to quash the order dated 07.12.2022 whereby application preferred by the informant for discharge of PW-2 was allowed after recording the examination in chief of PW-2 and order dated 28.03.2023 whereby application for recall of PW-2 for cross examination was rejected passed by Additional Sessions Judge, Court No.13, District Sultanpur in S.T. No. 521 of 2021 arising out of Case Crime No. 034 of 2020 under Sections 302 IPC, P.S. Dhammaur, District Sultanpur as well as further prayer for staying the proceedings of aforesaid S.T. No. 521 of 2021.

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Learned counsel for the applicant submitted that during the course of investigation statement of Subran Khan was recorded under Section 161 CrPC, he was introduced as eye-witness of the incident and charge-sheet was filed by Investigating Officer against the applicant. He further submitted that after framing of charge, Subran Khan was produced as complainant of the present case and application was moved with the consent of A.D.G.C. Criminal and application was allowed by learned trial court without giving any reason. He further submitted that once one witness was placed by prosecution and his evidence for examination in chief was recorded then the accused will not be in position to request the trial court to summon the said witness as a defence witness. He further submitted that it was obligatory on the part of the trial court to consider all these facts and ensure the presence of the witness for cross examination. He requested for kind indulgence of this Court and set aside the impugned order with the direction to the trial court to ensure the presence of PW-2/Subran Khan for cross examination.

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Learned AGA opposed the prayer of the applicant and submitted that there is no illegality in the order passed by trial court but he does not dispute this fact that the said witness cannot be called by accused as defence witness one he was called as prosecution witness and his examination in chief was conducted.

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Learned counsel for the complainant also submitted that after examination in chief PW-2 was summoned but despite issuance of non bailable warrant he filed application for discharge of the said witness.

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Considering the submissions advanced by learned counsels of the parties and going through the contents of the application as well as the impugned order and other relevant document, it is evident that once the examination in chief of one witness has already been conducted then it is obligatory on the part of the trial court to ensure his presence and give opportunity to the accused person for cross examination.

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In view of above, the impugned order passed by the trial court is hereby set aside.

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The trial court as well as Superintendent of Police, Sultanpur are directed to ensure the presence of Subran Khan, PW-2, before the trial court for cross examination. The trial court is also directed to conclude the trial expeditiously in accordance with law.

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Order Date :- 7.7.2023 Arpan

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Digitally signed by :- ARPAN High Court of Judicature at Allahabad, Lucknow Bench

Adil Khan v. State of U.P. Thru. Prin. Secy. Home Lko. and Another

Case brief

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Adil Khan v. State of U.P. Thru. Prin. Secy. Home Lko. and Another

Case brief

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What the court decided

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