Uttarakhand High Court
Unknown vs Ravi Bangia on 13 October, 2023
Office Notes, reports,
orders or proceedings
SL.
Date or directions and COURT'S OR JUDGES'S ORDERS
No
Registrar's order with
Signatures
C-482 No. 1983 of 2023
Hon'ble Pankaj Purohit, J.
Mr. S.S. Azmani, Advocate for the
applicant.
2. Mr. G.S. Sandhu, learned Government
Advocate, assisted by Mr. Kuldeep S. Rawal,
A.G.A. for the State and Mr. Siddhartha Singh,
Advocate for the private respondent no. 2.
3. By means of this application filed under
Section 482 of Cr.P.C., the applicant has
challenged the order dated 09.08.2023 passed by
the learned 2nd Additional Chief Judicial
Magistrate, Dehradun in Criminal Case No.
1732 of 2019, State Vs. Ravi Bangia, whereby,
the application under Section 311 Cr.P.C.
moved by the applicant has been rejected.
4. It is the case of the applicant that pursuant
to the FIR lodged by the applicant, a Criminal
Case No. 1732 of 2019, State Vs. Bangia, under
Section 406 and 420 IPC is going on in the
Court of 2nd Additional Chief Judicial
Magistrate, Dehradun. After recording of the
evidence of the prosecution witness, the accused
came forward for recording of his evidence, as a
witness, in the present trial invoking provision
under Section 315(1)(a) of Cr.P.C. The evidence
of the accused Ravi Bangia was recorded as
DW1 on 03.07.2023 in the trial and he has been
cross-examined by the learned public
prosecutor.
5. On 03.07.2023 itself, an application has
been moved on behalf of the applicant through
his counsel that since the counsel for the
applicant was busy in another Court, therefore,
he was not in a position to cross-examine the
witness DW-1 and the case may be adjourned.
6. It appears that the said application was
rejected and the evidence of the DW1 was
recorded as stated above.
7. On 10.07.2023, an application for
recalling witness DW1 was moved by the
applicant specifying the reason that suddenly on
03.07.2023, the evidence of DW1 was recorded
under Section 315(1)(a) Cr.P.C. and he could
not have been cross-examined by the applicant.
The said application for recalling DW-1 was
rejected by the learned 2nd Additional Chief
Judicial Magistrate by the reason of the
judgment and order impugned in this 482-
application.
8. It is submitted by learned counsel for the
applicant that on the last eight dates, for one
reason and the other, the matter was adjourned
by the respondent accused and suddenly, on
03.07.2023, he appeared and was examined as
DW1 and it is for this reason, the counsel for the
applicant could not cross-examine DW1. By not
cross-examining DW1, a prejudice has been
caused to the applicant and therefore, the
aforesaid application for recalling the said
witness was moved which has wrongly been
rejected by the learned Trial Court by reason of
the impugned judgment and order.
9. Per contra, the learned counsel for the
private respondent Mr. Siddhartha Singh has
submitted that the right of the private counsel,
instructed by informant/complainant is limited
and subject to the authority of the Assistant
Public Prosecutor or Public Prosecutor and he
may submit only a written argument, with the
permission of the Court, after the evidence is
closed at the time of final argument of the
matter; it is further argued by him that the
witness DW1 has already been cross-examined
by the public prosecutor in-charge of the case
and in that event, there is no reason to allow the
recalling of the said witness on the application
of the applicant and therefore, application under
Section 311 Cr.P.C. has rightly been rejected.
10. Having heard the learned counsel for the
parties and having gone through the provisions
of Section 301 of Cr.P.C., this Court is of the
view that the argument, which has been
advanced on behalf of the learned counsel for
the private respondent, is correct. The provision
of Section 301 is quoted hereinbelow;
301. Appearance by Public Prosecutors.
(1) The Public Prosecutor or Assistant Public Prosecutor
in charge of a case may appear and plead without any
written authority before any Court in which that case is
under inquiry, trial or appeal.
(2) If in any such case, any private person instructs a
pleader to prosecute any person in any Court, the Public
Prosecutor or Assistant Public Prosecutor in charge of the
case shall conduct the prosecution, and the pleader so
instructed shall act therein under the directions of the
Public Prosecutor or Assistant Public Prosecutor, and
may, with the permission of the Court, submit written
arguments after the evidence is closed in the case.
11. In such view of the matter, I do not find
any illegality in the order impugned and
accordingly, the 482 application is rejected.
(Pankaj Purohit, J.)
13.10.2023
Ujjwal
