Allahabad High Court
Mohit Yadav vs State Of U.P. And Another on 8 August, 2018
Bench: Harsh Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD
?
A.F.R.
Court No. - 50
Case :- CRIMINAL APPEAL No. - 3397 of 2018
Appellant :- Mohit Yadav
Respondent :- State Of U.P. And Another
Counsel for Appellant :- Ashok Kumar Singh,Pratibha Singh
Counsel for Respondent :- G.A.
Hon'ble Harsh Kumar,J.
The appeal has been filed under section 14-A(1) of S.C./S.T. Act against judgment and order dated 30.5.2018 passed by Special Judge S.C./S.T. Act, Kanpur Nagar in S.T. No.344 of 2007, Case Crime No.443 of 2006, under sections 147, 148, 149, 302 IPC and 3(2)5 S.C./S.T. Act, P.S. Naubasta, District Kanpur Nagar.
Heard learned counsel for the appellant, learned AGA for the State and perused the record.
Learned counsel for the appellant contends that the learned trial court vide impugned orders dated 30.5.2018 rejected application dated 27.4.2018 under section 311 Cr.P.C. of accused-appellant, subsequently recalled above order passed on application dated 27.4.2018 and then rejected his application dated 1.5.2018, which orders are wrong and incorrect; that in the murder trial, Kamal Kishore Bajpayee, the father of deceased was examined as P.W.14 and Dinesh Kumar Bajpayee and Safar Ali, who are not witnesses of charge sheet were not produced by the prosecution; that for these reasons, the accused-appellant moved an application on 27.4.2018 for summoning P.W.13 Kamal Kishore Bajpayee as well as Dinesh Kumar Bajpayee and Safar Ali, which application was partly allowed by learned trial court on 30.5.2018, rejecting the same for summoning Kamal Kishore Bajpayee and allowing to summon Dinesh Kumar Bajpayee and Safar Ali, as defence witnesses, but later on when it was brought to the notice of the Court that learned counsel for the accused had made an endorsement of "Not press" on the application, the learned trial court recalled its order dated 30.5.2018 passed on application dated 27.4.2018 and, thereafter, disposed of the application dated 1.5.2018 by impugned separate order; that the order on application dated 1.5.2018 has been passed by the Trial Judge with prejudiced mind due rejection of earlier application dated 27.4.2018, without due application of mind; that the cross examination with P.W.14 Kamal Kishore Bajpayee has not completed and since in application dated 27.4.2018, he was wrongly mentioned as P.W.13 in place of P.W.14 so another application was moved by Not pressing the application dated 27.4.2018; that the learned trial court had no jurisdiction to recall it's order dated 30.5.2018 passed on application dated 27.4.2018; that since earlier Advocates of accused-appellant did not cross examine P.W.14 on certain important and relevant points, so after engaging Sri Virendra Kumar Agnihotri and Sri Anil Sisodia, Advocates accused-applicant moved an application that P.W.14 is required to be summoned for further cross examination at the expenses of accused-appellant; that the impugned order is liable to be set aside and it is necessary in the interest of justice to direct the trial court to summon P.W.14 for further cross examination by newly appointed counsel of accused-appellant.
Per contra, learned AGA supported the impugned order and contended that since the application dated 27.4.2018 had been not pressed by the accused-appellant, so the order dated 30.5.2018 passed on it was rightly recalled by learned trial court and it was fully justified, as an order passed by mistake may always be recalled by the court concerned to correct the mistake; that it is wrong to say that cross examination with P.W.14 has not been completed and closed; that had it not been closed, there would have been no reason or occasion with the accused-appellant to move application under section 311 Cr.P.C. to summon him for further cross examination; that it is settled principle of law that by engaging another counsel the accused may not be permitted to call a witness again and again on the pretext of further cross examination to fill up the lacuna if any; that as far as summoning of witnesses Dinesh Kumar and Safar Ali is concerned, they are not witnesses of charge sheet and need not be produced by prosecution and if at all, the accused wants, may produce them in his defence evidence and they may not be summoned as prosecution witnesses.
Upon hearing parties counsel and perusal of record, I find that appellant is one of the accused, who is being tried for murder of the son of P.W.14 Kamal Kishore Bajpayee. It is also proved from the material on record that after completion of cross examination with P.W.14, the accused engaged new counsel and moved an application for further cross examination on the pretext that earlier counsel did not cross examine on certain important/relevant points though no such points have been disclosed. There is nothing on record to show that cross examination with P.W.14 is still open and had it been so, there would have been no reason for the accused-appellant to move application for summoning him.
It is settled principle of law that a witness need not be re-called on the ground of change of counsel.
In the case of Shyam Kumar and another Vs. State of U.P. and others, 2003 (3) ACR 2054, this Court has held that:-
"Recalling of witness -- powers very wide - to be exercised with restraint and judicially - not a tool to fill up the lacuna - change of counsel - certain questions left out from being asked from the witness - not sufficient to recall the witness for re-examination.
Accused can't have the witness recalled for examination as a matter of right. Extra ordinary provision can't be used as an afterthought to fill gaps."
As far as recall of order passed by the learned trial court on application dated 27.4.2018, I find that the above order of recall is fully justified, as it was passed on an application by mistake, as the application had already been not pressed by the accused-appellant and no order except "Rejected as not pressed" could have been passed. Further by recall of order, the right of accused-appellant to produce Dinesh Kumar and Safar Ali, as defence witnesses do not affect adversely and he has every right to produce them in his defence evidence.
In view of discussions made above, I find that learned counsel for the appellant has failed to show any illegality, irregularity or incorrectness in the impugned order. The appeal is devoid of merits and is liable to be dismissed.
The appeal is dismissed accordingly.
Order Date :- 8.8.2018
Tamang
