SUNIL DUBEY Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) This application under Sec. 482 of Cr.P.C. has been filed against the order dtd. 13/2/2024 passed by Additional Sessions Judge, Sagar in S.T. No. 50/2023 by which the right of the applicant to crossexamine the witnesses has been closed.

(2.) It appears that the case was fixed for recording of evidence of the prosecutrix. On 10/2/2024, the prosecutrix was present but the counsel for the accused/applicant submitted that the Senior Counsel Shri Anil Jain is not present, therefore, the cross-examination may be deferred. Accordingly, the cross-examination was deferred on the ground that in case if the prosecutrix expires or if she is unable to appear for crossexamination, then as per the provisions of Sec. 33 of Evidence Act, her examination-in-chief would be read and with aforesaid observation, the cross-examination was deferred on payment of cost of Rs.500.00. The prosecutrix was bound over and was directed to appear on 12/2/2024. On 12/2/2024, memorandum of appearance was filed by Shri Pushpendra Singh, Advocate that applicant does not wish to get the prosecutrix cross-examined by Shri Khan who was earlier appearing for him and he wants that the prosecutrix should be cross-examined by Shri Anil Jain. It was further submitted that Shri Anil Jain, Advocate could not come on account of cold and cough and accordingly, prayed for some time. It was observed by the trial Court that the prosecutrix is aged about 70 years and it also appears that she is not very comfortable in walking and she always appear with one relative. It was also expected by her that she is a poor person and in case if the expenses are given, then she can come on the next day but thereafter, no adjournment should be granted. Accordingly, on payment of cost of Rs.1,000.00, the crossexamination was deferred for one day and the case was fixed for 13/2/2024 with a clear observation that in case if the prosecutrix is not cross-examined, then the right of the applicant to cross-examine her would stand closed. On 13/2/2024, again the prosecutrix was present and one Shailendra Kumar Soni, Advocate moved an application alleging that his Senior Counsel is not well and accordingly, again prayed for time. Looking to the conduct of the applicant, the trial Court did not consider it to be a fit case for grant of adjournment and accordingly, prayer for adjournment was rejected.

(3.) Shri Shailendra Kumar Soni, Advocate produced his Vakalatnama and prayed that since he has been recently engaged by the applicant, therefore, he may be granted some time to cross-examine the prosecutrix. The prayer made by Shri Soni was also rejected. Accordingly, the accused was directed to cross-examine the prosecutrix but he expressed that in absence of his counsel he cannot cross-examine the prosecutrix. When the Court offered to appoint lawyer at state's expenses, then that was also rejected by the accused.