Allowed

Arvind Kumar @ Arvind v. State of U.P. and Another

Allahabad HC23 Feb 2023A482/6818/2023

Case brief

AI extract

What is this about?

In this 482 Cr.P.C. application, the High Court interfered with trial court orders that refused the applicant opportunity to cross-examine a prosecution witness due to the applicant's counsel's absence. The High Court set aside the orders, directing the trial court to provide an opportunity for cross-examination.

What did the court decide?

Impugned orders dated 27.07.2022 and 17.10.2022 set aside; direction issued to lower court to fix a date for cross-examination of P.W.-4.

Arvind Kumar @ Arvind Vs State of U.P. and Another — Criminal Trial and Appeal | Allahabad HC (2023)

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Court No. - 52

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Case :- APPLICATION U/S 482 No. - 6818 of 2023

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Applicant :- Arvind Kumar @ Arvind Opposite Party :- State of U.P. and Another Counsel for Applicant :- Sheel Kumar Singh,Alakshendra Pratap Counsel for Opposite Party :- G.A.

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Hon'ble Shiv Shanker Prasad,J.

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Heard learned counsel for the applicant and learned A.G.A for the State as also perused the record.

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The present 482 Cr.P.C. application has been filed with a prayer to grant opportunity to the applicant for cross-examining P.W.-4 i.e. Investigating Officer of the sessions trial and also quash the impugned orders dated 27.07.2022 as well as 17.10.2022 passed by learned Special Judge S.C./S.T. (PA) Act, Moradabad in Session Trial No. 1069 of 2019 (State Vs. Arvind), arising out of Case Crime No. 75 of 2019, under Sections 376, 354, 504, 506 I.P.C., Section 67 I.T. Act and Section 3(2)(v) S.C./S.T. Act, Police Station Thakurdwara, District Moradabad.

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Learned counsel for the applicant has submitted that the statement in examination- in chief of P.W.-4 Sanjeev Kumar (Inspector) was done on 06.05.2022 before the court below and the next date fixed for cross-examination of P.W.-4 was 27.07.2022. It is further submitted that on 27.07.2022 P.W.-4 Sanjeev Kumar, Investigating Officer was present before Court for his cross-examination but due to illness, counsel for the applicant was not present before the Trial Court due to which he could not cross-examine P.W.-4. The counsel of the applicant has also submitted his application for his absence and prayed for a new date being fixed for crossexamination of P.W.-4 due to his illness. It is also submitted that the Court below ignoring the application of the applicant's counsel, has closed the cross-examination of P.W.-4 while passing the impugned order dated 27.07.2022. It is next submitted that after opportunity for cross examination of P.W.-4 was closed, the next date fixed before the trial court for examination of P.W. 5 was 12.10.2022 and on the same date, the statement of P.W.-5 was recorded. Further submission is that the next date fixed was 17.10.2022 for recording the statement of accused under Section 313 Cr.P.C. The applicant has again moved an application under Section 311 Cr.P.C. on 17.10.2022 before the Trial Court for crossexamination of P.W.-4 but same was again rejected by Trial Court

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while passing the impugned order dated 17.10.2022.

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Learned counsel for the applicant submits that while passing the impugned order the court below has rejected the application of the applicant for cross-examination of P.W.-4 and the court below has not applied it s judicial mind at least on satisfaction and the same is like a routine order which has been passed in mechanical manner. At the time of passing any judicial order including the order rejecting any application for grant of cross-examination of any witness, the Court is required to apply judicial mind and such orders cannot be passed in mechanical manner. Learned counsel for the applicant further submits that only one date, the applicant's counsel due to his illness was not present and for the same he has also submitted his application but ignoring the said application, the court below has closed the statement of P.W.-4 and has not provided further opportunity to the applicant to cross-examine P.W.-4, which is per se illegal. In a criminal case, under the provisions of Criminal Procedure Code, the accused has every right to cross-examine any prosecution witness at any stage.

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On the cumulative strength of the aforesaid, learned counsel for the applicant submits that the orders impugned cannot be legally sustained and is hereby set aside also a direction be issue to the court below to fix a date for cross-examination of P.W.-4 by the accused/applicant or his counsel.

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On the other-hand, the learned A.G.A. for the State submits that there is no illegality or infirmity in the orders impugned, as such the present application is liable to be rejected.

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From perusal of both the orders impugned passed by the court below rejecting the applications of the applicant for crossexamination of P.W.-4 on the ground that on the date fixed when P.W.-4 was present, counsel for the applicant was not present for cross-examining P.W.-4 and the statement of P.W.-4 has been closed and it is not in the interest of justice to recall P.W.-4 for cross-examination. The view taken by the court below while rejecting the application of the applicant for cross-examination of P.W.-4 is too hyper technical. Such right of an accused cannot be refused by any court of law as even the smallest things matter in a criminal case because the life of a person who is accused is at stake and the judgment depends on each and every moment of a trial.

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In view of the aforesaid, this Court is of the opinion that the court below is not legally justified in rejecting the application of the

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applicant for cross-examination of P.W.-4 on such a petty ground, as such the orders impugned are hereby set aside. The court below is directed to fix a date for cross-examination of P.W.-4 by the accused/applicant after issuing a notice to the accused-applicant or his counsel as well as P.W.-4. On the date to be fixed by the court below, the accused/applicant or his counsel shall cross-examine P.W.-4.

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With the aforesaid directions/observations, the present application sands allowed.

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Order Date :- 23.2.2023 SK Srivastava

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Digitally signed by :- SAILESH KUMAR SRIVASTAVA High Court of Judicature at Allahabad

Arvind Kumar @ Arvind v. State of U.P. and Another

Case brief

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Arvind Kumar @ Arvind v. State of U.P. and Another

Case brief

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