Manoj vs State Of U.P. And Others
2023 Latest Caselaw 27609 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:193468
 
Court No. - 90
 

 
Case :- APPLICATION U/S 482 No. - 22113 of 2023
 

 
Applicant :- Manoj
 
Opposite Party :- State of U.P. and Others
 
Counsel for Applicant :- Avnish Kumar Srivastava
 
Counsel for Opposite Party :- G.A.,Sanjeev Kumar Yadav
 

 
Hon'ble Dinesh Pathak,J.

1. Heard learned counsel for the applicant and learned A.G.A. for the State.

2. The present applicant has invoked the inherent jurisdiction of this Court under Section 482 Cr.P.C. to quash the impugned order dated 04-04-2023, passed by the passed by Additional Sessions Judge/Special Judge, POCSO Act (First), Gautam Buddh Nagar, whereby the application under section 311 Cr. P.C., filed by the applicant, for recalling P.W. 3, P.W. 4 and P.W. 10, was rejected in S.T. No. 829 of 2022 (State Vs. Manoj), arising out of crime no-226 of 2022, under section 376 A & B I.P.C. & 5/6 POCSO Act, Police Station- Dankaur, District- Gautam Buddh Nagar and further be pleased to direct the Court concerned to recall P.W. 3, P.W. 4 and P.W. 10 for re-examination in the aforesaid case.

3. Facts culled out from the record are that, qua incident of rape with the minor girl, an F.I.R., being Case Crime No. 0226 of 2022 dated 06.07.2022, has been lodged on behalf of the father of the girl. After due investigation, the Investigating Officer has submitted charge sheet dated 08.07.2022 and the cognizance/ summon order was passed on 11.07.2022. Learned trial court has framed charges on 12.07.2022. Thereafter statement of witnesses were recorded. Present applicant (accused) has moved an application under Section 311 Cr.P.C. for opportunity to cross-examine the witnesses P.W.-1 to P.W.-5. During pendency of said application under Section 311 Cr.P.C., present applicant has moved an application under Section 482 No. 26204 of 2022. This Court, vide order dated 14.11.2022, has accorded opportunity to cross-examine the P.W.-1 to P.W.-5. In pursuance of the order dated 14.11.2022, the applicant has moved an application and, accordingly, opportunity was given by the trial court. During pendency of the trial present accused has moved an other application under Section 311 Cr.P.C., which was rejected by the trial court vide order dated 22.02.2023. Having been aggrieved, present applicant has assailed the said order by invoking the inherent jurisdiction of this Court under Section 482 Cr.P.C. through Application 482 No. 9029 of 2023. This Court, vide order dated 27.03.2023, has dismissed the said application as withdrawn with an observation that the applicant is intended to move before the trial court with better application under Section 311 Cr.P.C. The present applicant, in light of the observation made in the order dated 27.03.2023 passed by this Court, has moved another application dated 04.04.2023 under Section 311 Cr.P.C. (Paper No. 73Kha/1 to 73Kha/3) supported by an affidavit (Paper No 74-Kha). Learned trial court, after careful consideration of the application moved on behalf of the present applicant and the record of the trial court, has rejected the same by order impugned dated 04.04.2023, which is under challenge before this Court.

4. Learned counsel for the applicant has tried to assail the order impugned dated 04.04.2023 on the pretext of opportunity to get just and fair trial. In support of his submission learned counsel has relied upon the judgment dated 08.08.2022 passed in the matter of Varsha Garg vs. The State of Madhya Pradesh and Others, reported in 2022 0 Supreme (SC) 652. Perusal of the order impugned reveals that learned trial court has given full opportunity to the accused to cross-examine all the witnesses. Present accused has moved application under Section 311 Cr.P.C. many time to cross-examine the witnesses. So far as the P.W.-4 and P.W.-5 is concerned, for which present application under Section 482 Cr.P.C. has been filed, learned trial court has given specific finding that several dates i.e. 06.01.2023, 10.01.2023 and 17.01.2023 have been fixed to cross-examine the P.W.-4, however, all the times accused has moved adjournment application and failed to avail the opportunity to get P.W.-4 examined. Thereafter, date fixed for 02.02.2023 and 09.02.2023 to cross-examine P.W.-5, who has been examined by the accused on 09.02.2023. Thereafter, Senior S.P.P. has made an endorsement that no more witness is to be examined. After endorsement made by learned S.P.P., case was fixed for the statement of accused under Section 313 Cr.P.C. The relevant observation made by learned trial court is quoted herein below:-

"By perusing the ordersheet, it is clear that application 25Kha under section 311 Cr.PC, was allowed vide order dated 18.07.2022. Application no.37Kha/1 to 37Kha/2 under section 311 Cr.PC. of accused was allowed vide order dated. 29.07.2022 for cross-examination of PW-1, PW-2, PW-3, PW-4 and PW-5. Learned Advocate for accused cross-examined PW-2 on 01.08.2022. After that file was fixed on 02.08.2022, 04.08.2022, 08.08.2022, 22.08.2022 and witnesses were present on all the dates but learned Advocate for accused did not cross-examine any of the witnesses then opportunity was closed by this court vide order dated 22.08.2022. Then again learned Advocate filed application 49Kha under section 311 Cr.P.C. on 29.09.2022 which was allowed by this court vide order dated 14.10.2022 for cross-examination of PW-1, PW-3 and PW-4. File was fixed on 19.10.2022. 07.11.2022, 16.11.2022 and 28.11.2022 and witness PW-1 was present in the court throughout the day, but learned Advocate for accused neither cross-examined PW-1 nor filed any adjournment application except adjournment application dated 28.11.2022 then opportunity to cross-examine PW-1 was closed on 28.11.2022. After that filed was fixed on 01.12.2022, 05.12.2022, 09.12.2022 and 13.12.2022 for cross-examination of PW-1 in the compliance of order of Hon'ble High Court dated 14.11.2022 passed in Criminal Misc. Application No.26204 of 2022, but learned Advocate for accused did not cross-examine PW-1. After that ale was fixed on 04.01.2023 and learned Advocate for accused cross-examined PW-1. After that file was fixed on 06.01.2023, 10.01.2023 and 17.01.2023 for cross-examination of PW 4, but learned Advocate did not cross-examine PW-4. Then opportunity was closed on 17.01.2023 to cross-examine PW-4. After that file was fixed on 25.01.2023 and witness was present throughout the day, but learned Advocate for accused did not cross-examine PW-4, then opportunity was closed on 25.01.2023. After that file was fixed on 02.02.2023, 09.02.2023 for cross-examination of PW-5, but learned Advocate for accused cross-examined PW-5 on 09.02.2023. On 09.02.2023, learned SPP endorsed that no more witness is to be examined. After this endorsement, file has been fixed on 22.02.2023 for statement of accused under section 313 Cr.PC. By perusing the file, it is clear that sufficient opportunities have been provided to accused but learned Advocate for accused get delayed the trial deliberately."

5. After going through the observations made by the learned trial court in its order dated 04.04.2023, I am of the considered view that full and proper opportunity has been accorded to the present applicant (accused) to cross-examine the witnesses, however, he himself has failed on several occasions to avail the opportunity and throughout tried to protract the litigation for one pretext or another. In light of the observations made by the learned trial court, it cannot be said that just and fair trial has not been afforded/accorded to the present applicant to prove his innocence.

6. In this conspectus, as above, I am of the considered view that neither there is any abuse of process of the court nor any ground is made out to pass an order to secure the ends of justice in exercise of inherent jurisdiction under Section 482 Cr.P.C.

7. Resultantly, instant application, being misconceived and devoid of merit, is dismissed with no order as to costs.

Order Date :- 9.10.2023

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