Allahabad High Court
Bhimma vs State Of U.P. on 3 August, 2012
Bench: Arvind Kumar (Ii)
HIGH COURT OF JUDICATURE AT ALLAHABAD
Heard learned A.G.A. and perused the record. None appeared for revisionist side to argue the matter.
This criminal revision has been filed against order dated 9/1/2007 passed by the Additional Sessions Judge, court no. 1, Banda in S.T. No. 291-A/95 (State Vs. Bhima) under Sections 147/148/149/307 I.P.C., Police Station Kotwali Dehat, district Banda by which learned Additional Sessions Judge, Banda has rejected the application filed by Bhima dated 29.11.2006 for summoning the prosecution witness for additional cross-examination. It has been mentioned in the memo of revision that order dated 9/1/2007 is illegal and liable to be quashed. Learned court below has not exercised its power properly as provided under Section 303 Cr.P.C. and wrongly rejected the application moved by the revisionist for summoning the prosecution witness for re-cross examination. In view of the provisions given under Section 303 Cr.P.C. accused of offence has a right to be defended by a pleader of his choice.
A perusal of the papers filed by the revisionist and the impugned order, reveal that the trial of revisionist was separated from 5/10/2001 as he was not present on that day and the separate trial was numbered as 291-A of 1995. He appeared on 15.2.2006 and S.T.No. 291-A 1995 which was separated, was again tagged with the original Sessions Trial No. 291/1995. Before that, statement of P.W.-1 Uday Singh was recorded on 17.11.2005 and continued till 15.12.2005. Bhima appeared on 15.2.2006, after a long absence. He again did not appear on 15.4.2006 in the court, though witnesses were present. His absence was exempted on an application of his counsel. Examination-in-chief of P.W.-1 was recorded again and he was cross-examined by the counsel for all the accused persons, which continued till 22.4.2006. On 5.5.2006 P.W. 2, Ashwani Singh was examined by the prosecution and his cross-examination was also done by the counsel for all the accused persons and it continued till 6.5.2006. The accused, Bhima through his own counsel, Daya Shanker Shukla moved an application on 29.11.2006 to summon the prosecution witnesses for re-cross examination but that application was rejected by the impugned order. Feeling aggrieved, this criminal revision has been filed.
A perusal of the impugned order reveals that P.W.-1 and P.W.-2 were cross examined by the counsel for all the accused persons. On that date when Examination-in-chief of P.W. 1, was recorded, the application for exemption from appearance was moved by Sri Ashok Kumar Dixit, Advocate on behalf of Bhima.
Learned Court below was of the opinion that this application has been moved to delay the disposal of the case.
It has no where been stated that counsel Sri Ashok Kumar Dixit was instructed not to do pairvi on his behalf. It has also no where been stated that Advocate, Ashok Kumar Dixit has cancelled his Vakalatnama.
Power to summon the witness for re-examination is given in the Section 311 Cr.P.C. which reads as follows:
" Power to summon material witness, or examine person present- Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and reexamine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case."
In the case of Asif Hussain Vs. State of U.P. 2007 (57) ACC 1036, a division Bench of this Court has held that :
"We, therefore, answer the reference by holding that the order of the learned Sessions Judge under Section 311 Cr.P.C. refusing to summon witnesses, sought to be called by the accused, is a purely interlocutory order from the point of view of the accused-applicant and no revision against the same is maintainable."
In the case of Rama Paswan and others Vs. State of Jharkhand 2007 Cri. L. J. 2750, the Apex Court has held that:
"The section is manifestly in two parts. Whereas the word used in the first part is "may", the second part uses "shall". In consequence, the first part gives purely discretionary authority to a criminal court and enables it at any stage of an enquiry, trial or proceeding under the Code (a) to summon anyone as a witness, or (b) to examine any person present in the court, or (c) to recall and re-examine any person whose evidence has already been recorded. On the other hand, the second part is mandatory and compels the court to take any of the aforementioned steps if the new evidence appears to it essential to the just decision of the case."
In the case of Sethuraman Vs. Rajamanickam 2009 (65) ACC 607 the Apex Court has held that;
"The order passed by the trial court refusing to call the documents and rejecting the application under Section 311 Cr.P.C., were interlocutory orders and as such, the revision against those orders was clearly barred under Section 397 (2), Cr.P.C."
From the above discussion, it is clear that the impugned order is an interlocutory order and revision against such order is barred under Section 397 (2) Cr.P.C. From the factual point of view also, counsel for revisionist- Bhima has cross examined both the PWs at length so learned trial court was right in approach that this application has been moved only to delay the disposal of the trial.
In view of the above discussion, this revision is liable to fail and is hereby dismissed.
Stay order, if any, is hereby vacated. Learned Court below is directed to decide the case expeditiously, if not already decided, preferably, within a period of four months from the date when this order is communicated or certified copy is produced before the court.
( Arvind Kumar Tripathi II,J.)
Order dt.
Meenu
