Vijay Singh vs State Of Rajasthan
2021 Latest Caselaw 17611 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc(Pet.) No. 748/2021

Vijay Singh S/o Samarth Singh Rajput, Aged About 57 Years, Village Pawali, Tehsil Bhinmal, District Jalore (Raj.).

----Petitioner Versus

1. State Of Rajasthan, Through P.p.

2. Smt. Diwali D/o Dewaji Kalbi, Village Pawali, Tehsil Bhinmal, District Jalore (Raj.).

                                                                ----Respondents


For Petitioner(s)        :     Mr. Devkinandan Vyas
For Respondent(s)        :     Mr. Andaram Choudhary, PP
For Complainant(s)       :     Mr. Manish Patel


          HON'BLE MR. JUSTICE FARJAND ALI
                     Judgment
24/11/2021

1. By way of filing the present cr.misc.petition, a challenge has

been made to the order dated 7.2.2020 passed by the

learned Judicial Magistrate, Bhinmal, District Jalore in Cr.

Regular Case No.502/2017, whereby the application filed by

the petitioner under Section 311 of Cr.P.C. has been rejected.

2. Learned counsel for the petitioner submits that the petitioner

is facing trial since long for want of prosecution evidence.

The order-sheets reflect that earlier the prosecution witness

Gomadra Ram was summoned to adduce evidence for

prosecution before the trial Court and his examination-in-

chief had been recorded. It is on 6.1.2020, on behalf of the

accused-petitioner, an application was filed stating therein

that since the counsel for the accused-petitioner was not

able to attend the Court, therefore, proceedings may be

deferred for cross-examination.

                                            (2 of 3)                    [CRLMP-748/2021]



3.   Learned counsel submits that the said witness                           Gomadra

Ram happens to be the Investigating Officer of the case,

therefore, if the opportunity of cross-examining the said

witness is not permitted, the same would jeopardize the

right of defence. He further submits that right to cross-

examine him has been closed by the learned trial Court and

in that situation, the examination-in-chief of the said witness

would be read in evidence against the accused-petitioner

without the same being put to be tested in cross-

examination, which would be against the principles of fair

trial.

4. Learned counsel further submits that the inconvenience

caused to the witness can be compensated by way of

imposing cost upon the petitioner, but for that, he cannot be

deprived from his statutory right to cross-examine the

witness.

5. Mr. Manish Patel, learned counsel appearing for the

complainant vehemently opposed the prayer made by

learned counsel for the petitioner and submits that the said

application had been preferred just with a view to protract

the trial. He submits that the obnoxious behaviour of the

petitioner in not cooperating with the fair and smooth trial,

dis-entitles him to get the desired relief.

6. Learned Public Prosecutor echoed with the submissions made

by the learned counsel for the complainant.

7. Heard and perused the record.

8. After anxious consideration of the material as made available

by the learned counsel for the parties and considering the

submissions made by learned counsel for the parties, I deem

(3 of 3) [CRLMP-748/2021]

it appropriate to set aside the order dated 7.2.2020 passed

by the learned Judicial Magistrate, Bhinmal, District Jalore in

Cr. Regular Case No.502/2017, subject of course on payment

of cost of Rs.7,000/- payable to the Rajasthan Legal Services

Authority, Jalore.

9. Accordingly, this cr.misc.petition is hereby allowed. The

order impugned dated 7.2.2020 is set aside and it is directed

that the prosecution witness Gomadra Ram shall be recalled

by the trial Court for the purpose of cross-examination. It is

made clear that after summoning and subsequent

appearance of the said witness Gomadra Ram in the trial

Court, the cross-examination shall be done and completed

by the accused-petitioner or his counsel on the same day

and no further opportunity shall be granted and it shall be

deemed that his right to cross-examine the witness has been

closed.

10. Needless to observe that the cost of Rs.7,000/- to be paid to

the Rajasthan Legal Services Authority, Jalore shall be

deposited by the accused-petitioner on the next date of

hearing, failing which, the trial Court shall not permit the

accused-petitioner to cross-examine the said witness

Gomadra Ram.

11. The stay application also stands disposed of accordingly.

(FARJAND ALI),J 121-CPGoyal/-

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