Mahaveer and Another vs State of U.P.

Ravindra Singh, J.—Heard Sri Kamal Krishna, learned Counsel for the applicants and learned A.G.A. for the State of U. P.

This application has been filed by the applicants-Mahaveer and Ram Naresh with a prayer to quash the order dated 26.2.2009, passed by learned Additional Sessions Judge/ F.T.C.-4, Jaunpur in S.T. No. 49 of 2005, whereby the learned trial court has closed the statement of P.W. 9 by directing that his examination-in-chief shall not be read against those accused persons who have not cross-examined him.

The brief facts of this case are that an F.I.R. has been lodged by Smt. Manorma Devi on 15.10.2001 in respect of the incident which had occurred on 15.10.2001 at about 5 p.m. at police station Badshahpur, district Jaunpur in Case Crime No. 206 of 2001 under Sections 147, 308, 323, 504 and 506, I.P.C. The F.I.R. was lodged against the applicants and four other co-accused persons, after investigation, the charge-sheet was submitted on which the learned Magistrate concerned has taken the cognizance and summoned the accused persons to face the trial. Thereafter, the matter was committed to the court of Sessions, the same is pending in the court of learned Additional Sessions Judge/F.T.C.-4, Jaunpur vide S.T. No. 49 of 2005, at the stage of the trial, the statement of the Investigating Officer of this case has been recorded as P.W. 9 but he could not be cross-examined by the applicants. Thereafter, an application for summoning the P.W. 9 was filed by the applicants, the same was allowed at the cost, the cost of Rs. 1,000 has also been deposited by the applicants but subsequently, the evidence of P.W. 9 has been closed on the ground that it was informed by the pairokar of the prosecution side that P.W 9 has been retired from the service and he had gone some where else and it was ordered by trial court on 26.2.2009 that the evidence of P.W. 9 shall not be read against those accused who have not examined him.

Being aggrieved from the order dated 26.2.2009, the applicants have filed the present application with a prayer to quash the order dated 26.2.2009 and the opportunity of cross-examining to P.W. 9 may be afforded to the applicants. It is contended by the learned Counsel for the applicants that in the present case, the examination-in-chief of the P.W. 9 has been recorded, he has been cross-examined also by co-accused persons but he has not been cross-examined by the applicants. For cross-examining the P.W. 9, the application was moved by the applicants, same was allowed by the trial court at the cost of Rs. 1,000, the amount of the cost has been deposited by the applicants, thereafter on a flimsy ground the evidence of the P.W. 9 has been closed and the applicants have been denied not to cross-examine P.W. 9 only on the ground that P.W. 9 has been retired from service and he has gone some where else, in case the P.W. 9 is not cross-examined by the applicants, they shall suffer irreparable loss and the evidence of the P.W. 9 has been illegally closed by the trial court.

It is further contended by the learned Counsel for the applicants that the impugned order dated 26.2.2009 is also illegal because the trial court may not pass the order by saying that the evidence of P.W. 9 shall not be read against the accused persons who have not cross-examined him. Learned trial court has committed a manifest error in passing the impugned order dated 26.2.2009, the same may be set aside and the opportunity of cross-examining P.W. 9 may be afforded to the applicants.

In reply to the above contentions, it is submitted by the learned A.G.A. that the trial court has not committed any error in passing the impugned order dated 26.2.2009 because P.W. 9 has been retired from service and he has gone some where else, therefore, the trial court has passed the order not to read the evidence of P.W. 9 against those accused persons who have not cross-examined him, the impugned order is not suffering from any illegality or irregularity, the prayer for quashing the same may be refused.

Considering the submission made by learned Counsel for the applicants, learned A.G.A. for the State of U. P. and from the perusal of the record, it appears that the examination-in-chief of the P.W. 9, who is the Investigating Officer of this case has been recorded by the trial court and he has been cross-examined by other co-accused persons. He was not cross-examined by the applicants, considering the same the trial court has allowed the application filed by the applicant to summon P.W. 9 for the purpose of the cross-examination at the cost of the applicants, the applicants have deposited the cost imposed by the trial court but subsequently, the evidence of P.W. 9 has been closed by the trial court without summoning him on the ground that he has been retired from service and has gone at some other place, it is not a proper ground for closing the evidence of P.W. 9 whereas the trial court has already permitted the applicant to cross-examine the P.W. 9 at their cost. The trial court has committed a manifest error in closing the evidence of P.W. 9 and not affording the opportunity of cross-examining the P.W. 9. The trial court has committed another error by passing the order that the evidence of P.W. 9 shall not be read against the co-accused persons who have not cross-examined him, such order cannot be passed by the trial court because the examination-in-chief of P.W. 9 was recorded and he was cross-examined by some other accused persons, there is no such law.

The impugned order dated 26.2.2009 is illegal, it has not been passed in accordance with the provisions of law, therefore, the impugned order dated 26.2.2009 is hereby set aside and it is directed that in case the applicants move an application for summoning P.W. 9 for the purpose of cross-examination within 15 days from today, the same shall be allowed by the trial court and opportunity of cross-examination to the applicants shall be afforded.

With the above direction, this application is disposed of finally.

Let a certified copy of this order be issued to the learned Counsel for the applicants within 48 hours on payment of usual charges.