Allahabad High Court
Bhupendra Singh vs State Of U.P. And Another on 3 March, 2023
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 66
Case :- APPLICATION U/S 482 No. - 8018 of 2023
Applicant :- Bhupendra Singh
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Akhilesh Kumar Yadav
Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
Heard Mr. Akhilesh Kumar Yadav, the learned counsel for applicant and the learned A.G.A. for State.
Perused the record.
At the very outset, the learned counsel for applicant submits that due to inadvertence, the order dated 12.07.2022 passed by Additional District Judge/Special Judge (POCSO Act), Bijnor in Special Sessions Trial No. 45 of 2015 (State Vs. Bhupendra) under Sections 363, 364, 376 IPC and 7/8 POCSO Act could not be challenged. He, therefore, submits that he be permitted to amend the prayer clause of this application by seeking challenge to the order dated 12.07.2022.
Prayer made by the learned counsel for applicant is bona-ide. Same is not opposed by the learned A.G.A. Accordingly it is allowed.
Let necessary amendment in the prayer clause of this application be carried out by the learned counsel for applicant during course of the day.
This application under Section 482 Cr.P.c. has been filed challenging the order dated 12.07.2022 passed by Additional District Judge/Special Judge (POCSO), District-Bijnor in Special Sessions Trial No. 45 of 2015 (State Vs. Bhupendra) under Sections 363, 364, 376 IPC and 7/8 POCSO Act, Police Station-Haldaur, District-Bijnor whereby the right of cross examination of the witness, PW-2, Priti Sharma (Prosecutrix) has been closed and the order dated 13.01.2023 whereby the application under Section 311 Cr.P.C. filed by applicant has been rejected by court below.
Learned counsel for applicant submits that the object of Section 311 Cr.P.C. is to enable the Court to find out the truth and therefore there can be no delay in filing the application under Section 311 Cr.P.C. as it can be filed at any stage of the proceedings. It is then contended that it is true that twice opportunity was granted by court below to cross examine PW-2, Priti (Prosecutrix) but on account of non availability of the counsel for applicant, the cross examination of P.W.-2, Priti (Prosecutrix) could not be made on behalf of accused-applicant. It is then contended that justice should not only be done but should also seen to be done. He has then invited the attention of the Court to the order dated 14.10.2022 passed by court below itself whereby the application under Section 311 Cr.P.C. filed on behalf of the accused was allowed.
He, therefore submits that in the interest of justice, one more opportunity be granted to applicant to cross examine the prosecutrix, PW-2 (Priti).
Per contra, the learned A.G.A. has opposed the present application. He has then referred to the judgment of this Court in Application U/s 482 Cr.P.C. No. 1003 of 2021 (Anil Kumar and Another Vs. State of U.P. and 2 Others) decided vide order dated 15.03.2021. On the basis of above, he submits that no indulgence by granted by this Court in favour of applicant. However, the learned A.G.A. could not dislodge the factual submission urged by the learned counsel for applicant.
Having heard, the learned counsel for applicant, the learned A.G.A. for State and upon perusal of record, this Court find that it is an undisputed fact that the cross examination of PW-2, Priti (Prosecutrix) on behalf of the accused-applicant could not be done on account of the non-availability of the learned counsel representing the applicant before court below. As such, it cannot be said that there was deliberate negligence or latches on the part of applicant. It is well settled that the justice should not only be done but should also seen to be done. It is by now well settled that a judgment after hearing the parties is far far better than that an ex-parte judgment. Taking into consideration the aforesaid principles, the order impugned in the present application cannot be sustained. Accordingly the orders dated 12.07.2022 and 13.01.2023 passed by Additional District Judge/Special Judge (POCSO), District-Bijnor in Special Sessions Trial No. 45 of 2015 (State Vs. Bhupendra) under Sections 363, 364, 376 IPC and 7/8 POCSO Act, Police Station-Haldaur, District-Bijnor are hereby quashed.
Application is allowed on cost of Rs. 5,000/-. The cost shall be deposited by applicant before court below within a time period of one month from today. In case, the cost is deposited before court below then court below shall afford an opportunity of cross examination to applicant. The amount of cost shall be paid to the prosecutrix.
Order Date :- 3.3.2023
Vinay
