High Court
Case Details
Neutral Citation No. - 2024:AHC:123901 Court No. - 77 Case :- APPLICATION U/S 482 No. - 14603 of 2024 Applicant :- Dinesh Opposite Party :- State of U.P. and Another Counsel for Applicant :- Gagan Pratap Singh,Rohit Kumar Kushwaha Counsel for Opposite Party :- G.A. Hon'ble Samit Gopal,J.
Legal Reasoning
1. Heard Sri Atul Kumar, Advocate holding brief of Sri Gagan Pratap Singh, learned counsel for the applicant and Sri Bade Lal Bind, learned counsel for the State and perused the records. 2. The present application under Section 482 Cr.P.C. has been filed by the applicant Dinesh with the prayer to set aside the order dated 08.04.2024 and direct the court below to give the opportunity to the applicant for re-examination of PW-2 in Case No. 452 of 2012 (State Vs. Dinesh). 3. Learned counsel for the applicant submits that the applicant is an accused and is facing trial in the matter. It is submitted that the trial in the matter has started in which PW-1/Smt. Asha Devi, PW- 2 and PW-3/Devendra/first informant have been examined. It is submitted that the applicant moved an application dated 01.04.2024 under Section 311 Cr.P.C. before the trial court with the prayer that some important questions have been left out to be asked to the witnesses PW-2 and PW-3 and as such for the convenience and proper decision of the case, their re-examination is necessary and thus PW-2 and PW-3 be again summoned for the said purpose. The said application has been placed before the Court which is annexure 6 to the affidavit. It is submitted that the trial court vide the impugned order dated 08.04.2024 rejected the said application under Section 311 Cr.P.C. of the applicant by stating that there is likelihood that the witnesses are being prayed to be re-summoned for getting them hostile and as such rejected the said application. 4. Further, learned counsel has placed before the Court paragraph no. 14 of the affidavit in support of the 482 petition and has submitted that the earlier counsel of the applicant did not properly examine the witness PW-2 in cross examination and she is the eye witness and the other witness is the informant of the case and as such it was very important for them to be summoned again. Para 14 of the affidavit reads as under which has been placed before the Court: "14. That, in that application for recalling the P.W.-2, under Section 311 I.P.C. on dated 01.04.2024 in that application the earlier counsel of the applicant was not properly examined the witness P.W.-2 in the cross examine and he is the eye witness and informant of this present case and it is very important to re- examine the witness P.W.-2 in this case." 5. Learned counsel has further submitted while placing para 15 of the affidavit that the relevant facts which are to be put to PW-2 have been mentioned in the application dated 01.04.2024 which was not asked by the earlier counsel, para 15 of the affidavit reads as under: "15. That, it is relevant to point out here that the question which was not examined from the P.W.-2 in the cross examine and all the question which was not asked by the earlier counsel was mentioned in the application dated 01.04.2024." 6. It is submitted that the present 482 petition be allowed and appropriate directions be issued as prayed. 7. Per contra, learned counsel for the State opposed prayer and the arguments of learned counsel for the applicant and submitted that in so far as the application dated 01.04.2024 is concerned, the same is totally vague in itself as there is no description in the same as to what has been left out to be asked to the said witnesses. It is submitted that the trial court concerned has vide the order impugned even mentioned that there is no specific question mentioned in the said application which has to be asked from the said witnesses and has then further mentioned that it appears that the witnesses are being recalled for the purposes of getting them hostile. It is submitted that there is no illegality or irregularity in the order impugned. It is further submitted that although the application under Section 311 Cr.P.C. was filed with the prayer to summon PW-2 and PW-3 again but the present 482 petition has been filed only with the prayer to summon PW-2 who is the victim for re-examination. It is further submitted that new ground has been pleaded in the present 482 petition in paragraph nos. 14 and 15 that the earlier counsel of the applicant has not properly examined PW-2 and PW-3 and as such they are very important to be re-examined which would go to show that a new counsel of the applicant would be re-examining them which is not permissible as per law. It is submitted that as such the present 482 petition is devoid of any merit and is dismissed. 8. After having heard learned counsels for the parties and perusing the records, it is evident that the applicant is an accused facing trial in the matter. An application dated 01.04.2024 filed by him under Section 311 Cr.P.C. is with the prayer to summon PW-2 and PW-3 again for re-examination. There is no ground whatsoever mentioned as to why they are needed to be summoned again. A new ground is being taken in paragraph nos. 14 and 15 of the affidavit that the earlier counsel of the applicant did not properly examine them and thus it appears that a new counsel has been engaged who now wants to re-examine them. The said ground is not taken in the said application under Section 311 Cr.P.C. The present 482 petition has been filed with the prayer to summon only PW-2 only despite the fact that the application filed before the trial court was for summoning PW-2 and PW-3 but the applicant appears to have not made the prayer for re-summoning the PW-2 only. 9. The law with regards to summoning a witness for further cross- examination by change of counsel is very clear. The Apex Court in the case of State (NCT of Delhi) v. Shiv Kumar Yadav and another: 2016 (2) SCC 402 in para no. 29 (vii) has held that "Mere change of counsel cannot be ground to recall the witness". 10. In view of the law as laid down by the Apex Court in the case of Shiv Kumar Yadav and another (supra), the ground as pleaded being the need of further cross-examination of witnesses due to the opinion of a new counsel cannot in any manner be permitted. 11. Looking to the facts and circumstances of the case, the vagueness of the application under Section 311 Cr.P.C., the new ground as pleaded in paragraph nos. 14 and 15 of the affidavit and the law to the said effect, the present application under Section 482 Cr.P.C. is devoid of any merit and is dismissed. Order Date :- 1.8.2024 M. ARIF (Samit Gopal, J.)