High Court · 2025

2. At the very outset, the learned counsel for applicant submits that due to an inadvertent mistake the date of one of the impugned order has wrongly been transcribed as 28.2.2024 whereas the correct date is 01.03.2024. He therefore, seeks permission of the Court to correct aforementioned inadvertent mistake occurring in the prayer clause of this application.

3. Prayer made by the learned counsel for applicant is bonafide. Same is not opposed by the learned AGA. Accordingly, it is allowed.

4. Let necessary correction/amendment in the prayer clause of this application be carried out by the learned counsel for applicant during course of the day.

5. Heard Mr. R.K. Shahi, the learned counsel for applicant and the learned A.G.A. for State-opposite party-1.

6. Perused the record.

7. This application under Section 482 Cr.P.C. has been filed by accused-applicant Sadam Husain challenging the order dated 01.03.2024 passed by Additional Sessions Judge,F.T.C.-II, Kushinagar at Padrauna in Sessions Trial No.888 of 2022 (State Vs. Saddam Husain and others) arising out of Case Crime No.177 of 2022 under Sections 147, 323, 504, 354, 366, 376, 120-B I.P.C., Police Station Sevrahi, District Kushinagar whereby the opportunity to cross examine P.W.-1 on behalf of accused- applicant was closed and also the order dated 16.10.2024 whereby the application dated 10.10.2024 under Section 311 Cr.P.C. filed by accused-applicant for recall of P.W.-1 has been rejected by court below.

8. Learned counsel for applicant submits that irrespective of the findings returned by Court below in the orders impugned the crux of the matter is that the prosecutrix has not yet been cross examined on behalf of accused-applicant. Admittedly, the trial is that accused/applicant himself.

9. On the above conspectus, he therefore submits that the trial of accused-applicant should be a free and fair trial. The statement-in- chief of the prosecturix is to be accepted ipso facto even though the same has not gone into the furnace of cross examination. He therefore, submits that principles of natural justice shall be served in case one more opportunity is granted to the accused-applicant to cross examine the prosecutrix i.e. P.W.-1. Furthermore in case such a procedure is directed to be followed by court below that neither of the parties can have any prejudice with the same. On the above premise, he therefore submits that the present application is liable to be allowed.

10. Per contra learned AGA representing the State-opposite party-1 has vehemently opposed the present application. He submits that repeatedly prosecutrix could not be cross examined on behalf of accused-applicant. Therefore no illegality has been committed by court below in passing the orders impugned. The prosecutrix appeared before court below on the dates fixed but defence deliberately did not examine her. Only an application for exemption/stay was filed. As such no illegality was committed by court below in closing the opportunity of defence to cross examine the prosecutrix P.W.1. As such, no interference is warranted by this Court in present application.

11. Having heard the learned counsel for applicant, the learned A.G.A. for State and upon perusal of record, this Court finds that it is an undisputed fact that the statement-in-chief of the prosecutrix P.W.-1 commenced on 28.2.2024. Since an exemption/stay application was filed by accused/applicant, therefore, 1.3.2024 was the next date fixed. On the said date on behalf of accused-applicant again adjournment was prayed on the ground that the proposed questions to be put to the prosecutrix could not be prepared. However, Court below rejected the adjournement prayed by accused-applicant with the rider that the opportunity to cross examine P.W.-1 i.e. prosecutrix by the acussed-applicant shall stand closed. Consequently, the accused-applicant filed an application under Section 311 Cr.P.C. for recall of P.W.-1, which has also been rejected. It is thus apparent that no cross examination of P.W.-1 has taken place before court below. It is an established rule of evidence that no amount of evidence can be looked into unless the same comes out unscratched from the furnace of cross examination. Since no cross examination of the prosecutrix has taken place, therefore the statement-in-chief of the prosecutrix is to be considered ipso facto by Court below.

12. In view of above, and also the principles underlying the Rules of Natural Justice the present application succeeds and is liable to be allowed.

13. It is accordingly allowed.

14. The impugned orders dated 01.03.2024 and 16.10.2024 passed by Additional Sessions Judge,F.T.C.-II, Kushinagar at Padrauna in Sessions Trial No.888 of 2022 (State Vs. Saddam Husain and others) arising out of Case Crime No.177 of 2022 under Sections 147, 323, 504, 354, 366, 376, 120-B I.P.C., Police Station Sevrahi, District Kushinagar are hereby quashed.

15. However, it is further provided that the applicant shall deposit a sum of Rs.10,000/- with the court below along with a certified copy of this order. In case aforesaid direction is complied with then Court below shall recall P.W.-1 i.e. prosecutrix for her further cross examination. Court below shall further ensure the presence of the prosecutrix. The amount deposited by applicant before Court below in compliance of this order shall be paid to the prosecutrix.

16. It is however, made clear that only one opportunity shall be available to accused applicant to cross examine the prosecutrix. In case the prosecutrix appears before Court below for further cross examination by accused applicant on the date fixed by court below but if for some reason or the other the accused-applicant fails to cross examine the prosecutrix i.e. P.W.-1 in compliance of this order, the opportunity of accused-applicant to cross examine the prosecutrix i.e. P.W.-1 shall come to an end and no further application on behalf of accused-applicant in that regard shall be entertained by court below. Order Date :- 17.1.2025 Md Faisal MOHD FAISAL High Court of Judicature at Allahabad

2. At the very outset, the learned counsel for applicant submits that due to an inadvertent mistake the date of one of the impugned order has wrongly been transcribed as 28.2.2024 whereas the correct date is 01.03.2024. He therefore, seeks permission of the Court to correct aforementioned inadvertent mistake occurring in the prayer clause of this application.

3. Prayer made by the learned counsel for applicant is bonafide. Same is not opposed by the learned AGA. Accordingly, it is allowed.

4. Let necessary correction/amendment in the prayer clause of this application be carried out by the learned counsel for applicant during course of the day.

5. Heard Mr. R.K. Shahi, the learned counsel for applicant and the learned A.G.A. for State-opposite party-1.

6. Perused the record.

7. This application under Section 482 Cr.P.C. has been filed by accused-applicant Sadam Husain challenging the order dated 01.03.2024 passed by Additional Sessions Judge,F.T.C.-II, Kushinagar at Padrauna in Sessions Trial No.888 of 2022 (State Vs. Saddam Husain and others) arising out of Case Crime No.177 of 2022 under Sections 147, 323, 504, 354, 366, 376, 120-B I.P.C., Police Station Sevrahi, District Kushinagar whereby the opportunity to cross examine P.W.-1 on behalf of accused- applicant was closed and also the order dated 16.10.2024 whereby the application dated 10.10.2024 under Section 311 Cr.P.C. filed by accused-applicant for recall of P.W.-1 has been rejected by court below.

8. Learned counsel for applicant submits that irrespective of the findings returned by Court below in the orders impugned the crux of the matter is that the prosecutrix has not yet been cross examined on behalf of accused-applicant. Admittedly, the trial is that accused/applicant himself.

9. On the above conspectus, he therefore submits that the trial of accused-applicant should be a free and fair trial. The statement-in- chief of the prosecturix is to be accepted ipso facto even though the same has not gone into the furnace of cross examination. He therefore, submits that principles of natural justice shall be served in case one more opportunity is granted to the accused-applicant to cross examine the prosecutrix i.e. P.W.-1. Furthermore in case such a procedure is directed to be followed by court below that neither of the parties can have any prejudice with the same. On the above premise, he therefore submits that the present application is liable to be allowed.

10. Per contra learned AGA representing the State-opposite party-1 has vehemently opposed the present application. He submits that repeatedly prosecutrix could not be cross examined on behalf of accused-applicant. Therefore no illegality has been committed by court below in passing the orders impugned. The prosecutrix appeared before court below on the dates fixed but defence deliberately did not examine her. Only an application for exemption/stay was filed. As such no illegality was committed by court below in closing the opportunity of defence to cross examine the prosecutrix P.W.1. As such, no interference is warranted by this Court in present application.

11. Having heard the learned counsel for applicant, the learned A.G.A. for State and upon perusal of record, this Court finds that it is an undisputed fact that the statement-in-chief of the prosecutrix P.W.-1 commenced on 28.2.2024. Since an exemption/stay application was filed by accused/applicant, therefore, 1.3.2024 was the next date fixed. On the said date on behalf of accused-applicant again adjournment was prayed on the ground that the proposed questions to be put to the prosecutrix could not be prepared. However, Court below rejected the adjournement prayed by accused-applicant with the rider that the opportunity to cross examine P.W.-1 i.e. prosecutrix by the acussed-applicant shall stand closed. Consequently, the accused-applicant filed an application under Section 311 Cr.P.C. for recall of P.W.-1, which has also been rejected. It is thus apparent that no cross examination of P.W.-1 has taken place before court below. It is an established rule of evidence that no amount of evidence can be looked into unless the same comes out unscratched from the furnace of cross examination. Since no cross examination of the prosecutrix has taken place, therefore the statement-in-chief of the prosecutrix is to be considered ipso facto by Court below.

12. In view of above, and also the principles underlying the Rules of Natural Justice the present application succeeds and is liable to be allowed.

13. It is accordingly allowed.

14. The impugned orders dated 01.03.2024 and 16.10.2024 passed by Additional Sessions Judge,F.T.C.-II, Kushinagar at Padrauna in Sessions Trial No.888 of 2022 (State Vs. Saddam Husain and others) arising out of Case Crime No.177 of 2022 under Sections 147, 323, 504, 354, 366, 376, 120-B I.P.C., Police Station Sevrahi, District Kushinagar are hereby quashed.

15. However, it is further provided that the applicant shall deposit a sum of Rs.10,000/- with the court below along with a certified copy of this order. In case aforesaid direction is complied with then Court below shall recall P.W.-1 i.e. prosecutrix for her further cross examination. Court below shall further ensure the presence of the prosecutrix. The amount deposited by applicant before Court below in compliance of this order shall be paid to the prosecutrix.

16. It is however, made clear that only one opportunity shall be available to accused applicant to cross examine the prosecutrix. In case the prosecutrix appears before Court below for further cross examination by accused applicant on the date fixed by court below but if for some reason or the other the accused-applicant fails to cross examine the prosecutrix i.e. P.W.-1 in compliance of this order, the opportunity of accused-applicant to cross examine the prosecutrix i.e. P.W.-1 shall come to an end and no further application on behalf of accused-applicant in that regard shall be entertained by court below. Order Date :- 17.1.2025 Md Faisal MOHD FAISAL High Court of Judicature at Allahabad