DUX JITENDRABHAI PARMAR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This application under Articles 226 and 227 of the Constitution of India is directed against the order dtd. 18/12/2019 passed in Criminal Case No. 1991 of 2018, whereby, the Chief Judicial Magistrate, Palanpur declined to recall the complainant respondent no.2, sought to be examined for the purpose of cross-examination.

(2.) Facts and circumstances giving rise to file the present application are that, the applicant herein is arraigned as an accused in the FIR No. 14 of 2017, registered with Palanpur City (West) Police Station, for the offences punishable under Sec. 384 , 386 , 294(B) 506(2) and 114 of Indian Penal Code read with Sec. 25(1)(a) of the Arms Act and with Sec. 40(1)(2) and 42(a) of the Money Lenders Act, 2000. He came to be arrested on 17/4/2018. The supplementary chargesheet was being filed on 12/5/2018. It is not in dispute that, after release on bail, he was apprehended under the Prevention Detention Law called as "PASA " and on 6/8/2018, he was sent to Palara Jail, Kutch-Bhuj as PASA detenue. Meanwhile, the trial Court proceeded with the matter. On 22/5/2018 and 30/5/2018, the complainant - respondent no. 2, summoned by the trial Court for evidence and accordingly, he had been examined by the Court. The counsel for the applicant herein, though remained present, did not proceed for cross-examination of the complainant and disclosed before the court that he having no necessary instructions. The learned trial Court adjourned the matter subject to deposition of cost of Rs.3000.00 and same was deposited by the counsel of the applicant. Admittedly, on the date of proceedings, the applicant was at the Palara Jail and jail authority was not intimated by the court concerned to remain him for the trial proceedings and therefore, the proceedings were completed in the absence of the applicant.

(3.) In the aforesaid facts and circumstances, the applicant accused herein moved an application Exh. 119 for recalling of respondent no. 2 complainant on the ground that, there was no fault on his part and despite the payment of cost of Rs.3000.00, his advocate did not complete the cross-examination. Thus, considering the nature of allegations and role attributable to present applicant herein, the witness - respondent no. 2 is required to be recalled to complete the cross-examination and therefore, he may be given an opportunity for cross-examination of the complainant. The learned trial Court vide its order dtd. 18/12/2019, rejected the application, holding that, despite sufficient opportunity to the counsel for the applicant was given, he did not completed the cross-examination and now, after one year of the proceedings, the present application for recalling is being filed, which shows that same has been given to delay the trial proceedings and accordingly, the application Exh. 119 has been rejected by the Court.