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Ashish Kumar Mishra vs State Of U.P. And 3 Ors on 24 February, 2020


?Court No. – 74

Case :- APPLICATION U/S 482 No. – 7291 of 2020

Applicant :- Ashish Kumar Mishra

Opposite Party :- State Of U.P. And 3 Ors

Counsel for Applicant :- Chandra Kumar

Counsel for Opposite Party :- G.A.

Hon’ble Ram Krishna Gautam,J.

This Application, under Section 482 of Code of Criminal Procedure, 1973, has been filed by the Applicant, Ashish Kumar Mishra, with a prayer for setting aside iimpugned order, dated 7.12.2019, passed by Ist Additional District Sessions Judge, Bhadohi, in Sessions Trial No. 05 of 2010, State vs. Ashish Kumar Mishra, and, thereby, to direct the Trial court for recalling of witnesses, PW-1-Ashish Kumar Pandey, PW-2-Vijay Shanker Pandey and PW-3-Smt. Nisha Devi for their re-examination.

Learned counsel for applicant argued that an application, under Section 311 of Cr.P.C., was filed before the Trial court, for a direction of re-examination of PW-1-Ashish Kumar Pandey, PW-2-Vijay Shanker Pandey and PW-3-Smt. Nisha Devi, in view of the questions elaborated in the application, Paper No.148-Kha, which could not be asked by the previous counsel and this application was opposed by the prosecution, whereas, those questions were important and relevant for just decision of the trial, but the Trial court refused same, while rejecting the application, which was an abuse of process of law. Hence, for avoiding abuse of process of law, this Application, under Section 482 of Cr.P.C., has been filed, with above prayer.

Learned AGA, representing State of U.P., has vehemently opposed this Application.

Perusal of the impugned order reveals that cross-examination of PW-1 was continued from 25.8.2010 to 20.5.2015, i.e., for almost five years and at different dates, PW-1 was examined. Likewise, PW-2 and PW-3 have been examined and cross-examined in detail and maximum questions, sought to be asked, as mentioned in the application, were previously asked, but, copies of those statements have not been filed before this court for analysing as to whether those questions have been asked or not, whereas, order of the Trial court is of this fact that those questions have been asked and it was owing to change of counsel or failure of previous counsel for asking those questions, those three witnesses have been requested to be summoned for their re-examination. Apex Court in the case of State of Haryana vs. Ram Mehar and others, reported in 2016 AIR SC 3942 as well as in the case of State (NCT OF Delhi) vs. Shivkumar Yadav and another, reported in (2016) 2 Supreme Court Cases 402, has elaborated provisions of Section 311 of Cr.P.C. It is an enabling provision, empowering the Trial court for examining, re-examinang or further examining any witness, either present in court, or to be summoned in case it is required for reaching to the ends of justice in judicial making.

In present case, questions, mentioned in the application, to be asked, seems to be regarding demand of dowry and cruelty with regard to it, which have already been put in to those prosecution witnesses because this trial is for the charges for offences, punishable, under Sections 498A and 304B of IPC, read with Section 3/4 of Dowry Prohibition Act, wherein, those witnesses of fact have been voluminously examined. Hence, for reaching to ends of justice, under above proposition of law, Trial court, did not think it appropriate for re-examining those witnesses, as such, rightly rejected application, while passing impugned order. There appears to be no abuse of process of law. Order, impugned herein, passed by the Trial court, is substantiated by facts and law.

Accordingly, this Application, being devoid of merits, merit dismissal and it stands dismissed as such.

Order Date :- 24.2.2020




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