Allahabad High Court
Vishnu Pratap Chauhan vs State Of U.P. Thru. Prin. Secy. ... on 3 March, 2023
Bench: Shree Prakash Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 27
Case :- APPLICATION U/S 482 No. - 2204 of 2023
Applicant :- Vishnu Pratap Chauhan
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. And Another
Counsel for Applicant :- Shobh Nath Pandey
Counsel for Opposite Party :- G.A.
Hon'ble Shree Prakash Singh,J.
Heard learned counsel for the applicant, Sri Nirmal Kumar Pandey, learned A.G.A.for the State and perused the record.
Instant application under section 482 Cr.P.C. has been filed with the prayer to quash the order dated 24-02-2023 passed by the learned Sessions Judge, Balrampur in Sessions Trial No. 95/2018, under sections 302/34,120-B I.P.C., Police Station-Kotwali Nagar, District-Balrampur by which the application of the applicant/accused filed for recall of witness i.e. P.W.-9(I.O.) bearing No. 63-B has been rejected.
Learned counsel appearing for the applicant submits that the applicant has challenged the order dated 24-02-2023 passed by the learned Sessions Judge, Balrampur. He added that the Chargesheet has been filed under sections 302/34,120-B of I.P.C. and there are serious charges against the present applicant and therefore, every step including the cross-examination are important for proper and fair adjudication of the matter. He added that since the counsel for the applicant was ill and therefore, he could not appear before the court and for this reason, an application was given before court concerned, but, the opportunity of cross-examination has been closed and the court has proceeded for recording statement of the accused under section 313 of Cr.P.C. He submits that irreparable loss would occur to the present applicant, if he is not been afforded the opportunity of cross-examination to the P.W.-9 i.e. the Investigating Officer. He also added that the date i.e. 01-03-2023 wherein the accused was called for recording of his statement, has been adjourned.
In support of his contentions, he has placed reliance on Judgment rendered in the case of The Secretary, Department of Horticulture, Chandigarh and Ors Vs. Raghu Raj reported in AIR 2009 SC 514 and has referred paragraph no. 27 & 28 of the said Judgment, which reads as under :-
"27. Now, it cannot be gainsaid that an advocate has no right to remain absent from the Court when the case of his client comes up for hearing. He is duty bound to attend the case in Court or to make an alternative arrangement. Non-appearance in Court without 'sufficient cause' cannot be excused. Such absence is not only unfair to the client of the advocate but also unfair and discourteous to the Court and can never be countenanced.
28.At the same time, however, when a party engages an advocate who is expected to appear at the time of hearing but fails to so appear, normally, a party should not suffer on account of default or non-appearance of the advocate."
Referring the aforesaid, he added that the Apex court in the abovesaid case has held that if the advocates engaged, do not appear before the court due to certain reasons, a party should not left to suffer on account of default or non-presence of the advocate. He next added that since there is no fault on the part of the present applicant and he cannot be left to suffer for non presence of the advocate, though he was ill on the date fixed and thus, an opportunity for cross examination with P.W.-9, may be afforded to the present applicant in the interest of justice.
Per contra, learned A.G.A. appearing for the State has opposed the contentions aforesaid vehemently and contended that after the Examination-in-Chief on 09-02-2022, the date was fixed for cross-examination of the Investigating Officer, but, the present applicant has deliberately avoided to cross examine the Investigating Officer. He next added that the Investigating Officer is from district-Gorakhpur and thus, there is hardship before the P.W.-9 to come at each and every date and that too on the convenience of the accused. He added that it is deliberate avoidance on the part of the applicant and thus, he is not entitled for any relief.
Considering the submissions of learned counsel for the parties and after perusal of the material placed on record, it emerges that the Examination-in-Chief was done on 09-02-2023 and thereafter, the date was fixed for cross examination, though an application was submitted that the counsel for the applicant is suffering from ailment, but, without considering the same, the court proceeded in the matter and passed the order on 24-02-2023 and has stopped the opportunity of cross-examination of P.W.-09.
This court is not unmindful with the Judgment of the Apex court in the case of The Secretary, Department of Horticulture, Chandigarh and Ors Vs. Raghu Raj (Supra) that expedition of trial does not mean that the opportunity of cross-examination will not be afforded to the accused and other affected persons.
In view of aforesaid submissions and discussions, the order dated 24-02-2023 is hereby set aside.
The matter is remitted back to the trial court concerned and the date is fixed for 16-03-2023,whereupon the applicant or his counsel will appear before the court and will cross examine the P.W.-09 i.e. the Investigating Officer. The applicant shall not seek any adjournment on the said date.
This application is being allowed on the cost of Rs. 2,000/-, which shall be paid by the applicant to P.W.-09 i.e. Investigating Officer on the date of his presence before the trial court concerned.
It is made clear that any deviation by the applicant with respect to his presence before the trial court on the date fixed, shall stand revoked this order.
With the aforesaid observations/directions, the instant application is hereby allowed.
Order Date :- 3.3.2023/AKS
