Allahabad High Court
Gaurav Gautam vs State Of U.P. & Another on 18 June, 2021
Bench: Rajeev Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 17
Case :- U/S 482/378/407 No. - 1108 of 2021
Applicant :- Gaurav Gautam
Opposite Party :- State Of U.P. & Another
Counsel for Applicant :- Arjun Kumar Kaushal,Alok Kumar Mishra
Counsel for Opposite Party :- G.A.,Akshat Kumar,Sanjay Kumar Srivastava,Sanjay Singh
Hon'ble Rajeev Singh,J.
The Court convened through video conferencing.
Heard, learned counsel for the applicant, learned counsel for the private respondent, learned A.G.A. and perused the record.
This application under Section 482 Cr.P.C. has been filed by the applicant for quashing the impugned order dated 09.02.2021 passed by the Additional District & Sessions Judge, Fast Track Court, Unnao passed in application bearing no.46 Kha filed under Section 311 Cr.P.C. in Session Trial No.120 of 2017 (State Vs. Gaurav Gautam & Others).
Learned counsel for the applicant has submitted that applicant filed an application under Section 311 Cr.P.C. bearing No.46 Kha dated 12.09.2019 for recall of the witness PW-2 (Injured) namely, Brijesh Singh @ Mangal Singh. He further submitted that aforesaid application was moved to re-examine the PW-2, as the statement of PW-6 namely, Dr. Ashutosh Bajpai was recorded on 28.08.2018 and 20.09.2018 in which he deposed that the injured told him that some unknown persons opened fire upon him, therefore, the injured is necessary to recall for further examination. He further submitted that the aforesaid application was heard by the court below on 14.01.2020 and the final order was passed on 09.02.2021 without considering the argument and plea. He also relied on the decision of Hon'ble Supreme Court in the case of P. Sanjeev Rao Vs. State of Andhra Pradesh reported in (2012) 7 SCC 56 and submitted that in the present case, recall of the injured witness is necessary and delay in filing the application for recall is secondary.
Learned counsel for the private respondent has submitted that the prosecution evidence was closed and thereafter, statement under Section 313 Cr.P.C. was recorded on 12.09.2019 and in the aforesaid statement, applicant denied to take any opportunity for placing any defence. He further submitted that only with intention to linger on the proceeding of the trial, the application under Section 311 Cr.P.C. was moved without explaining the cause of delay in filing application for recalling of the injured witness, who was examined before the Court below on 30.07.2018.
Learned counsel for the private respondent has submitted that the applicant filed 4th Bail Application No.8972 of 2019 before this Court, the same was rejected on 27.11.2019 with a direction to the trial court to conclude the trial within three months. He further submitted that the aforesaid bail order was not placed before the trail court by the applicant, thereafter 5th bail application was moved i.e Bail Application No. 6452 of 2020 in which the plea was raised that the trial was not concluded the trial within three months despite the direction of this Court in the aforesaid bail application vide order dated 27.11.2019, thereafter, affidavit was called by this Court in the aforesaid bail application on the fact that when the order of this Court was served in the court below but applicant failed to do so, thereafter, the application was rejected on 17.02.2021 as on 18.02.2021, the case was listed before the trial court for final hearing. He further submitted that due to Covid-19 pandemic, the matter was adjourn and on 07.04.2021, prosecution concluded his argument and thereafter on the request of the defence counsel, the case is being adjourned for argument on 12.04.2021, 13.04.2021, 15.04.2021, 19.4.2021, 27.04.2021, 07.05.2021, 07.05.2021, 03.06.2021, 16.06.2021 and now listed on 29.06.2021, in such circumstances, no interference is required in the present case. He further submitted that in the application under Section 311 Cr.P.C., the delay has not been explained and requesting for recall of the injured witness who was already examined on 30.07.2018 and in his statement he categorically deposed the role of applicant, therefore, no interference is required.
Learned A.G.A. has submitted that this application under Section 311 Cr.P.C. was filed by the accused/applicant only with the intention to delay the trial.
Considering the argument of learned counsel for the parties and going through the contents of application as well as other documents, it is evident that statement of PW-2 injured was concluded on 30.07.2018 before the trial court and he deposed the role of applicant and he was also cross-examined and after closer of prosecution evidence, the statement under Section 313 Cr.P.C. was recorded on 12.09.2019, applicant did not make any request for defence and thereafter matter was posted for final hearing, but due to Covid-19 pandemic, the proceeding could not be concluded in the year of 2020. On 07.04.2021, the argument of prosecution was concluded and on the request of the defence counsel, the case has been adjourned for his argument for ten times. It is also evident that intention of Section 311 Cr.P.C. is to recall the witness, not with intention to linger on the trial, but it should be for proper dispensation of justice. In the present case, it is very much clear that the application under Section 311 Cr.P.C. is moved only with intention to linger on the trial and the ratio of the judgment relied by the learned counsel for the applicant is not applicable in the present case.
In view of the above, the application (u/s 482 Cr.P.C.) is rejected.
The party shall file computer generated copy of order downloaded from the official website of High Court Allahabad, self attested by it alongwith a self attested identity proof of the said person (s) (preferably Aadhar Card) mentioning the mobile number (s) to which the said Aadhar Card is linked before the concerned Court/Authority/Official.
The concerned Court/Authority/Official shall verify the authenticity of the computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 18.6.2021
Amit/-
