Allahabad High Court
Javed vs State Of U.P. And Another on 28 January, 2021
Bench: J.J. Munir
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. - 74
Case :- APPLICATION U/S 482 No. - 17883 of 2020
Applicant :- Javed
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Inder Pal Singh Tomar
Counsel for Opposite Party :- G.A.,Shiv Sagar Singh,Shiv Sagar Singh.
Hon'ble J.J. Munir,J.
Counter affidavit filed on behalf of the State today in Court is taken on record.
The applicant has come up challenging an order dated 14.10.2020 passed by the learned Additional Sessions Judge/Special Judge, POCSO Act, Court No. 3, Hapur in S.T. No. 382 of 2017 State vs. Prince @ Naved & others (arising out of Case Crime No. 617 of 2017) under Sections 147, 148, 149, 452, 307 & 504 IPC, P.S. Hapur Nagar, District Hapur.
By the order under challenge, the learned Trial Judge has rejected an application under Section 311 Cr.P.C. requesting the Court to recall PW-3 and PW-4 with permission to cross-examine them further. These witnesses are doctors who testified during trial as expert witnesses. It is made out in the application that the accused wishes to ask the two doctors three specific questions. These questions have been set out in the application dated 09.10.2020. These read thus:
प्रश्न 1- पी०डब्लू०-3 से यह पूछना है कि कांच की चोट का घाव बिल्कुल सीधा नही होता है यह किसी और चीज से भी आ सकता है। क्या चोट के वाह्य व आन्तरिक किनारो पर कांच के महीन कण मौजूद थे या नही।
प्रश्न 2- शरीर पर लगी चोट के घाव का रंग क्या था।
प्रश्न 3- पी०डब्लू०-4 ने अपने ब्यान में कहा है कि चोट पर पट्टी बंधी थी अल्ट्रासाउण्ड करते समय पट्टी खोल दी गयी थी। इस डॉक्टर ने यह स्पष्ट नही किया है कि चोट के वाह्य या आन्तरिक किनारो पर कांच के महीन कण मौजूद थे या नही तथा चोट का रंग क्या था।
The Trial Judge has rejected this application by means of the impugned order dated 14.10.2020 on ground that the case is lingering on and the applicant has had sufficient opportunity to cross-examine the doctors. The Trial Court has also borne in mind the fact that the case is fixed for address of arguments.
Learned counsel for the applicant submits that the provisions of Section 311 Cr.P.C. empower the Court to recall any witness at any stage of trial, if the evidence appears to be essential to a just decision of the case. It is urged by the learned counsel for the applicant that the nature of the injuries involved are decisive about both the fact in issue and the relevant facts that have decisive bearing on his complicity. He ought, therefore, be afforded opportunity to recall the two expert witnesses and put further questions to them. Reliance has been placed on a decision of the Supreme Court in Anokhilal vs. State of Madhya Pradesh AIR 2020 SC 232, where it has been held:
"26. Expeditious disposal is undoubtedly required in criminal matters and that would naturally be part of guarantee of fair trial. However, the attempts to expedite the process should not be at the expense of the basic elements of fairness and the opportunity to the accused, on which postulates, the entire criminal administration of justice is founded. In the pursuit for expeditious disposal, the cause of justice must never be allowed to suffer or be sacrificed. What is paramount is the cause of justice and keeping the basic ingredients which secure that as a core idea and ideal, the process may be expedited, but fast tracking of process must never ever result in burying the cause of justice."
Mr. K.P. Pathak, Advocate who appears for the complainant-opposite party no. 2 opposes the aforesaid prayer, as does the learned AGA.
Looking to the fact that the case is one under Section 307 IPC and involves arraignment on a serious charge about which the nature of injury may be decisive, it would be necessary to the just decision of the case that the applicant be permitted to put further questions to the two expert witnesses, PW-3 & PW-4 , before the matter proceeds to address of arguments and judgment. However, in order to avoid any prolixity in the conclusion of this trial, it is made clear that apart from the three questions set forth in the application, or a detail of the same, no further question would be put to the recalled witnesses on fresh issues by the applicant. The questions to be put by the revisionist shall be concluded in a single day, on such date as the learned Trial Judge may fix which shall not be later than ten days from the date of receipt of a copy of this order. For the purpose, the learned Trial Judge shall cause PW-3 & PW- 4 to be summoned on the date fixed and permit the accused to put further questions to them, as directed. The witnesses shall be discharged immediately after their evidence is over. The Trial Judge shall conclude the trial within a period of three months, in accordance with law.
This Application is allowed. The impugned order dated 24.10.2020 passed by the learned Additional Sessions Judge/Special Judge, POCSO Act, Court No. 3, Hapur in S.T. No. 382 of 2017 State vs. Prince @ Naved & others (arising out of Case Crime No. 617 of 2017) under Sections 147, 148, 149, 452, 307 & 504 IPC, P.S. Hapur Nagar, District Hapur is set aside. The application under Section 311 stands allowed in terms of the directions carried hereinabove.
Let this order be communicated to the learned Additional District & Sessions Judge/Special Judge, POCSO Act, Court No. 3, Hapur through the learned Sessions Judge, Hapur by the Joint Registrar (Compliance) within 24 hours..
Order Date :- 28.1.2021
Deepak
