RIYAZUDDIN Vs. STATE OF U P

JUDGEMENT

(1.) HEARD learned counsel for the applicants as well as learned counsel for the State.

(2.) THE present criminal misc. application has been filed under S.482 of CrPC The applicants have prayed for quashing the order dated 12-12-2000 passed by the VIIth Additional District and Sessions Judge, Kanpur Dehat in S.T. No. 443/99 State v. Fida Husain under S.304, I.P.C. Police Station Bilhore, District Kanpur Dehat and direct the Court below (Trial Court) to permit the applicants to recall and cross - examine the witnesses of fact PW 2 Zamil Ahmad and PW 4 Zalaluddin. It has further been prayed that this Court be pleased to stay further proceeding in Sessions Trial No. 443/99 (State v. Fida Husain) pending before the VIIth Additional District and Sessions Judge, Kanpur Dehat during the tendency of the present application. It has been contended on behalf of the applicants that the learned Sessions Judge has failed to consider and appreciate that the necessary documents including site plan, statement of witnesses recorded under S.161, CrPC and Panchnama could not be furnished to the applicants and hence in absence of these necessary documents a fair trial could not be conducted. The applicants are facing a Session Trial No. 443/99, under S.304, IPC. Police Station Bilhore, District Kanpur in respect of the FIR dated 18-7-1999 lodged in reference to the case Crime No. 299/99 under S.302, IPC. It has also been contended in para 6 of the affidavit that at the time of cross - examination, the counsel for the applicant at trial Court had no papers regarding the case including Site plan, statement of witnesses recorded under S.161, CrPC etc. An application on behalf of the applicants was given before the VIIth Additional District and Sessions Judge, Kanpur Dehat for permitting the applicants to cross - examine the witnesses e.g. PW 2 Zamil Ahmad and PW 4 Zalaluddin. A supplementary affidavit dated 26-6-2001 has also been filed before this Court. In para 3 of this affidavit it has been submitted that earlier the PW 2 and PW 4 were examined on behalf of the accused / applicants by one learned counsel who left the brief on account of his poor health and ultimately the accused / applicants were left with no option except to engage a new counsel to look into the matter and for this purpose only, they moved an application for adjournment of the case. It has also been indicated in the affidavit that the applicants moved an application 18-11-2000 that one Sri Sayeed Naqvi has been engaged as a new counsel, who has felt that both the witnesses of facts namely PW 2 and PW 4 were important and material witnesses and have not been examined properly by the earlier learned counsel appearing for the accused / applicants, whereas the result of the trial shall mainly depend upon their testimony therefore in the interest of justice they are required to be recalled by the Hon'ble Court. It has also been contended on behalf of the applicants in para 4 of the supplementary affidavit that the reasons for recalling them for the re - examination was that the new counsel appearing for the accused / applicants could not ascertain the questions which were to be asked by the earlier counsel. It has also been assured in para 5 of the supplementary affidavit that the applicants further undertake that they will not take any adjournment in examining the aforesaid witnesses and they are ready to bear the expenses to be incurred in recalling the aforesaid witnesses. Learned Sessions Judge in his order dated 12-12-2000 has not found any justification for recalling the witnesses PW 2 and PW 4 for re - examination and for cross - examination. In support of the contentions raised by the applicant learned Counsel has invited attention of this Court to the following cases.

(3.) IN the facts and circumstances of the case the order dated 12-12-2001 is therefore set aside and learned Additional District and Sessions Judge (VIIth), Kanpur Dehat is hereby directed to invoke his power under S.311, CrPC to allow for re - examine / cross - examine the witness No. 2 Zamil Ahmad and PW 4 Zalaluddin on the particular specified date which shall be indicated and fixed at the pleasure and convenience of learned concerned District and Sessions Judge on the prescribed conditions and the cost and expenses to be specifically indicated for the purpose of re - examination / cross - examination. As assured on behalf of the applicants that the co - operation shall be given in the case being adjudicated before the Sessions Trial and on the scheduled prescribed dates for re - examination / cross - examination. If the applicants are failed to obey their role it would be pleasure of the Sessions Judge not to provide further time for re - examination / cross - examination.