Dismissed

Nihal v. State of U.P. and 3 Others

Allahabad HC14 Nov 2024A482/30158/2024

Case brief

AI extract

What is this about?

High Court dismissed an application under Section 482 Cr.P.C. seeking quashing of order closing victim's cross-examination. Court found applicant repeatedly failed to avail opportunity for cross-examination of minor witness, causing harassment.

What did the court decide?

Application under Section 482 Cr.P.C. dismissed; impugned order refusing to recall witness unaffected.

Nihal vs State of U.P. and 3 Others — Criminal Trial and Appeal | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC:179038

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Court No. - 74

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Case :- APPLICATION U/S 482 No. - 30158 of 2024

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Applicant :- Nihal Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- J Shubham,Jitendra Kumar Mishra Counsel for Opposite Party :- G.A.

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Hon'ble Manish Mathur,J.

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Supplementary affidavit filed by the applicant in Court today is taken on record.

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Heard learned counsel for the applicant and learned A.G.A. for the opposite party no. 1-State.

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In view of the order being passed today, notice to opposite party nos. 2, 3 and 4 stands dispensed with.

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Application under Section 482 Cr.P.C. has been filed seeking quashing of impugned order dated 05.01.2024 passed in Special Session Trial No. 48 of 2019 (State versus Nihal and others) arising out of Case Crime No. 154 of 2019 registered under Sections 376, 328, 506 I.P.C. and 67 I.T. Act and 3/4 of the POCSO Act at Police Station-Farrukhabad Kotwali, Farrukhabad, whereby application preferred by the applicant under Section 311 Cr.P.C. has been rejected.

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Learned counsel for applicant has drawn attention to the application preferred under Section 311 Cr.P.C. dated 20.12.2013 to submit that cross examination of the alleged victim was continuing with next date fixed being 20.10.2023 on which date, counsel for the applicant was unable to attend the case due to his being busy in another matter, due to which the case was adjourned. It is submitted that the applicant was unaware with regard to the next date fixed and learnt only subsequently that cross examination of P.W. 1 was thereafter closed by means of order dated 20.10.2023.

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It has been submitted that the cross examination of P.W. 1 is an inherent right of the applicant in view of his right of liberty under Article 21 of Constitution of India. It is submitted that the cross examination of P.W. 1 should not have been closed by trial court

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mainly on the ground that the counsel for applicant was unable to attend to the case on only one date.

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On the basis of instructions, it is submitted that the applicant is ready and willing to bear expenses for recalling of the P.W. 1 for the purposes of cross examination which is the valuable right of the applicant.

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Learned A.G.A. has opposed the application with a submission that the order impugned clearly indicates the fact that the applicant is continuously desisting from conducting cross examination of P.W. 1 due to which the opportunity to cross examine her was closed. It is submitted that the conduct of applicant clearly indicates an effort to prolong proceedings.

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Upon consideration of submissions advanced by the learned counsel for the parties and perusal of the material on record, particularly, the impugned order, it is evident that examination in chief of P.W. 1 ended on 22.10.2019 whereafter cross examination was conducted till 18.02.2020. It appears that subsequently, three next dates were fixed, on which date P.W.-1 appeared, but the cross examination was not concluded and adjournment was sought by the applicant which was allowed on the condition that on the next date no further adjournment would be given.

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The impugned order indicates that even subsequently, cross examination was not concluded due to which opportunity for same was closed.

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From perusal of aforesaid facts and circumstances, which are clearly admitted by the applicant in the application preferred under Section 311 Cr.P.C., it is apparent that a number of opportunities have already been granted to the applicant to conclude cross examination of P.W. 1, but such opportunity is not being availed of by the applicant himself on one pretext or the other.

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The application under Section 311 Cr.P.C. preferred by the applicant also admits the same fact. It is noticeable that the P.W. 1 is minor girl who has been continuously appearing for the purpose of cross examination which is not being concluded at the instance of applicant.

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The impugned order has also adverted to the condition indicated in Section 311 Cr.P.C. while rejecting the application on the ground that further cross examination of P.W. 1 is not essential for the just decision of the case, particularly in view of opportunity

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of cross examination not being availed of by the applicant himself.

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The impugned order also refers to the judgment rendered by the Supreme Court in the case of Vinod Kumar versus State of Punjab (2015) SCC 2020 in which directions have been issued not to defer cross examination of a witness at the pleasure or leisure of defense counsel. Trial court has also referred to judgment rendered in the case of State of Haryana versus Ram Mehar And Others AIR 2016 SC 3942 .

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In the considered opinion of this Court, aforesaid judgments are squarely applicable in the present facts and circumstances of the case and the conduct of applicant clearly indicates harassment being caused to the minor victim.

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In view of the aforesaid facts and circumstances, this Court does not find any occasion to interfere with the order impugned.

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The application under Section 482 Cr.P.C. being devoid of merit is accordingly dismissed .

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Order Date :- 14.11.2024 SY

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Digitally signed by :- SWETA YADAV High Court of Judicature at Allahabad

Nihal v. State of U.P. and 3 Others

Case brief

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Nihal v. State of U.P. and 3 Others

Case brief

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