THE HON'BLE Dr. JUSTICE G. RADHA RANI
CRIMINAL PETITION No.12748 of 2013
ORDER:
This Criminal Petition is filed by the petitioner - accused under Section 482 Cr.P.C., to quash the orders of the Additional Junior Civil Judge cum XVII Metropolitan Magistrate, Cyberabad at Rajendra Nagar, in Cril.M.P. No.1219 of 2013 in CC No.942 of 2011, dated 27.08.2013.
2. The facts of the case leading to filing the instant petition are that the respondent No.1 i.e. the State of Andhra Pradesh through Rajendranagar Police filed a charge sheet against the petitioner under Section 304-A IPC vide C.C. No.942 of 2011, that the petitioner, driver of the Tipper Lorry, hit the deceased, who was proceeding on a bicycle, in a rash and negligent manner, due to which the cyclist sustained bleeding injuries and while undergoing treatment at Osmania General Hospital died on 20.01.2009 at 1.45 P.M. Trial was commenced. On 29.07.2013, the eye witnesses were produced by the respondent-complainant and were examined as PWs.3 and 4 in chief. Learned counsel for the petitioner-accused was not present and as such, the Court below recorded the cross-examination as 'Nil.' A petition was filed by the learned counsel for the petitioner-accused under Section 311 Cr.P.C., to recall PWs.3 and 4 on 20.08.2013 and the same was dismissed by the Court below vide impugned order in Crl.M.P. No.1219 of 2013 on 27.08.2013. Aggrieved by the said Dr.GRR,J 2 Crl.P. No.12748 of 2013 dismissal order, the petitioner-accused filed this petition contending that the orders of the Court below were without any application of mind and the same were cryptic. The Court below without appreciating the issue No.1 in proper perspective, mechanically dismissed the petition holding that the reasons assigned in the petition would deserve no consideration. The Court failed to appreciate that the counsel on record was not available during the course of examination of PWs.3 and 4 as he was held up in another Court i.e. VIII Metropolitan Magistrate Court. The cross examination of PWs.3 ad 4 was essential as they were shown as eye-witnesses and the petitioner-accused would suffer much hardship to prove his innocence if he lost valuable opportunity to cross-examine the said witnesses and prayed to allow the petition by quashing the orders in Crl.M.P. No.1219 of 2013 dated 27.08.2013.
3. Heard the learned counsel for the petitioner and the learned Public Prosecutor.
4. Learned counsel for the petitioners relied on a judgment of this Court in Syed Dastagir v. State of Andhra Pradesh1 wherein it was held that the accused was not entitled as of right for postponement of cross-examination. However, the Court might grant such postponement on reasonable grounds i.e. where the case was undefended or the Counsel appointed had no instructions till that date, the cross-examination could be deferred to the next day. 1 2005 (3) APLJ 144 Dr.GRR,J 3 Crl.P. No.12748 of 2013
5. The Calender Case is pertaining to the year 2011. The eye- witnesses cited as PWs.3 and 4 were examined on 29.07.2013. The petition under Section 311 Cr.P.C., was filed for recalling the above witnesses on 20.08.2013 and the said petition was dismissed on 27.08.2013. This criminal petition is pending since the year 2013. After a long gap of more than 8 years, the witnesses might not be available or even if available, might not recall the evidence properly or might have moved away. No fruitful purpose would be served due to this long delay. Though the accused is not entitled as of right for postponement of cross-examination, but as the petition filed by the learned counsel for the petitioner-accused under Section 311 Cr.P.C. would disclose that the counsel was held up in another court due to which he could not cross-examine the witness on the said day, the said petition should have been allowed by the trial Court. The evidence affecting a party was not admissible against that party unless the latter had an opportunity of testing its truthfulness by cross-examination. As denying the opportunity of cross-examination of the witnesses by the accused would amount to denial of justice, it is considered fit to quash the impugned orders.
6. In the result, the Criminal Petition is allowed quashing the order dated 27.08.2013 passed in Crl.M.P. No.1219 of 2013 in C.C. No.942 of 2011 by the Additional Junior Civil Judge cum XVII Metropolitan Magistrate, Cyberabad at Rajendra Nagar. The trial Court is directed to complete the trial within a period of two months Dr.GRR,J 4 Crl.P. No.12748 of 2013 from the date of receipt of a copy of this order by summoning the said witnesses for cross-examination, if available.
Miscellaneous Petitions pending, if any, shall stand closed.
_____________________ Dr. G. RADHA RANI, J 28th October, 2021 KTL