ASHISH KUMAR Vs. STATE OF M.P.

JUDGEMENT

(1.) ON behalf of the applicant/accused, this revision is preferred under section 397/401 of the Cr.P.C. being aggrieved by the order dated 28.2.2014 passed by the Special Court, constituted under the provision of Prevention of Corruption Act, (in short 'the Act') Shahdol in Special Case No. 1/10 whereby his application filed under section 311 of the Cr.P.C. to recall the examined witness Rajendra Prasad Sharma (PW 1) and extend him the opportunity of cross -examination, has been dismissed. The trial of the aforesaid case with respect of the charge of some offence of the Act is pending against the applicant and on earlier occasion, the in -chief of the aforesaid witness was recorded but after recording such in -chief, instead to cross -examine the witness on behalf of the applicant, his counsel prayed for adjournment on different ground on which, treating such stated grounds to be sufficient, the case was adjourned on various occasions as stated in the impugned order and lastly, the case was fixed for cross -examination of the said witness on 27.1.14. As per case of the applicant, his engaged counsel Shri Dinesh Narayan Pathak, in connection of admission of his daughter in the course of MBA, had gone to 2 Bangalore and due to that reason he was not available to cross -examine the witness on 27.1.14. So, in the absence of such counsel, his colleague/junior counsel Shri Raghvendra Pathak appeared and prayed for adjournment with a request to place the matter on 1.2.14 for cross -examination of such witness saying that Shri Dinesh Narayan Pathak Advocate will come back from Bangalore on 31.1.14 but as per the impugned order such date was not given to the applicant and it was stated in the order that on 1.2.14 the Presiding Officer of the case had to go to attend some training at Gwalior and thereafter he will be on leave on 3rd and 4th of February, 2014 and, in such premises, the aforesaid appearing counsel Shri Raghvendra Pathak was directed to cross -examine the witness on the same day i.e. 27.1.14 and when such counsel said that he is not prepared to cross examine the witness on the same day i.e. 27.1.14 and when such counsel said that he is not prepared to cross examine the witness then the right of the applicant to cross -examine such witness was closed by the trial court. Subsequent to coming aforesaid counsel Shri Dinesh Narayan Pathak from Bangalore, impugned application under section 311 of the Cr.P.C. by mentioning the available grounds for recalling the aforesaid witness for his cross -examination was filed.

(2.) SUCH application of the applicant was seriously opposed on behalf of the prosecution before the trial court. On consideration, taking into consideration the various reported cases mentioned in the impugned order by holding that in view of section 362 of the Cr.P.C. subsequent to passing the order to close the right of applicant to cross -examine the aforesaid witness, the trial court did not have any authority to recall or review such order, dismiss the application. In the impugned order it is further observed that in the lack of any inherent power, vested under section 482 of the Cr.P.C. with the High Court and Supreme Court, the aforesaid earlier order dated 27.1.14 could neither be recalled nor reviews. Being aggrieved by such dismissal, the applicant has come to this court with this revision.

(3.) ON the other hand, responding the aforesaid arguments, the standing counsel of the respondent by justifying the impugned order said that in the available scenario as stated in the impugned order, the trial court has not committed any error in dismissing the impugned application. As such, the impugned order being based on proper appreciation of the factual matrix, is in accordance with law and does not require any interference at this stage. He also said that inspite extending various dates to cross -examine the aforesaid witness after recording his in -chief the same were not availed and for one reason or another the applicant had not want to cross -examined the aforesaid witness, and thereby he has created the obstruction in holding the trial. In view of such conduct of the applicant also the impugned order does not require any interference. With these submissions he prayed for dismissal of this revision.