HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. – 74
Case :- APPLICATION U/S 482 No. – 1463 of 2020
Applicant :- Gaurav Jain
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Ashish Kumar Singh
Counsel for Opposite Party :- G.A.
Hon’ble Om Prakash-VII,J.
Heard learned counsel for the applicant and the learned AGA for the State and perused the record.
Present application is being decided at this stage itself without issuing notice to the opposite party no.2. If opposite party no.2 feels aggrieved with this order, it will be open to her to file recall application.
This application under Section 482 CrPC has been filed with the prayer to quash the order dated 18.12.2019 passed by Chief Judicial Magistrate, Moradabad in C.N.R. NO. UPMO0040007592011, Comp. No. 9410/2011, Case No. 14047/9/2019, arising out of Case Crime No. 38 of 2011, under Sections 498-A, 323, 504 and 506 IPC and 3/4 D.P. Act, Police Station Kotwali, District Moradabad and further to stay effect and operation of the said order.
It is submitted by the learned counsel of the applicant that divorce petition filed on behalf of applicant was allowed. Applicant intended to file said document at the time of cross-examination of PW-2 through an application but same was rejected by the trial court. The impugned order is illegal and without application of judicial mind.
Learned AGA has opposed the prayer.
I have considered the submissions made by the learned counsel for the parties and have gone through the entire record carefully.
It appears that opposite party no.2 had approached this Court through application u/s 482 No. 18892 of 2019, which was finally disposed of vide order dated 10.5.2019. The said order is as under:
“Heard learned counsel for the applicant, learned AGA for the State and perused the record.
This application has been filed under section 482 Cr.P.C., with a prayer for a direction to the concerned court below to decide the Case No. 9410 of 2011(State v. Gaurav Jain and others) arising out of CAse Crime No. 38 of 2011, under sections 498A, 323,504,506 IPC and 3/4 of D.P. Act, Police Station Kotwali, District Moradabad pending in the court of ACJM- II, Moradabad within stipulated period fixed by this Court.
In view of submissions made by learned counsel for the petitioner, no useful purpose would be served in keeping the application pending which is finally disposed of with a direction to the concerned court below to consider and decide the Case No. 9410 of 2011(State v. Gaurav Jain and others) arising out of Case Crime No. 38 of 2011, under sections 498A, 323,504,506 IPC and 3/4 of D.P. Act, Police Station Kotwali, District Moradabad, expeditiously preferably within a period of six months from the date of production of a certified copy of this order, in accordance with law after hearing the concerned parties, without granting unnecessary adjournment to either of the party, in case the proceedings of the aforesaid case, is not stayed by any Court.”
It further appears that application moved by the applicant (accused) for adjournment to file certain documents and cross-examination from PW-2 was rejected observing that there was specific direction passed by this Court in the aforesaid application u/s 482 CrPC moved by the opposite party no.2 to conclude the trial within specified period.
If the submissions raised on behalf of applicant are compared with the observations recorded by the trial court in the impugned order, it is evident that opportunity should have been provided to the applicant to file documents before the Court concerned so that proper cross-examination could be done from PW-2. Though applicant has opportunity to file said documents at the time of defence evidence yet opportunity of cross-examination on the basis of said documents shall not be available to the applicant at the stage of defence evidence. Hence, in the facts and circumstances of the case, prayer made in the application is liable to be granted and the impugned order is liable to be set aside subject to payment of cost of Rs. 4,000/- to the opposite party no.2 at the time of her appearance for cross-examination on the date fixed in the matter before the Court below. Applicant shall also file all documents, which he intended to file, positively by the date fixed in the matter before the Court below and same shall be made part of the record.
In view of the above discussions, application is allowed. The impugned order is set-aside in terms of the observations made here-in-above.
Order Date :- 10.1.2020