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Nawaz vs State Of U.P. And Anr on 13 December, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

?Court No. – 78

Case :- APPLICATION U/S 482 No. – 46168 of 2019

Applicant :- Nawaz

Opposite Party :- State Of U.P. And Anr

Counsel for Applicant :- Imtyaz Ahmad

Counsel for Opposite Party :- G.A.

Hon’ble Anil Kumar-IX,J.

Heard learned for the applicant and learned AGA for the State as well as perused the record.

This application under Section 482 Cr.P.C. has been moved with a prayer to quash the order dated 15.11.2019 passed by Additional Sessions Judge, Special Judge (POCSO Act), Bagpat in Sessions Trial No.7 of 2017 (State Vs. Nawaz) arising out of Case Crime No.390 of 2016, under Section 354 IPC and 8/11 Protection of Children from Sexual Offence Act, Police Station- Khekra, District- Bagpat pending in the Court of Additional Sessions Judge, Special Judge (POCSO Act), Bagpat.

Brief facts of this matter is that applicant is accused in the aforesaid case and facing trial before the court below. PW-3, who is the victim was examined in the aforesaid case on 11.7.2018. On this date, she was cross-examined also and rest of the cross-examination from this witness was completed on 14.8.2018. On 15.11.2019, an application under Section 311 Cr.P.C. was moved on behalf of the applicant before the court below to recall the victim (PW-3) for further cross-examination, which was rejected by the impugned order of the court below.

Learned counsel for the applicant contended that though victim (PW-3) has been examined and cross-examined earlier but her cross-examination was not properly conducted by the counsel in the court below. Some questions are still to be asked on point of her statement under Section 164 Cr.P.C. It was also contended that impugned order is illegal, unjust and improper.

Learned AGA opposed the prayer of the applicant and submitted that application had not been moved with bona fide object. It was moved only for the purpose to linger the case.

The Court has power to recall a witness under Section 311 Cr.P.C. at any stage of the trial for the purpose of further examination which is in exclusive of examination-in-chief and cross-examination for exercising this power. Court must be satisfied that such recalling of the witness must be exercised for the just disposal and adjudication of the case. In the instant case, the witness (PW-3), who is the victim below 18 years of age, was examined and cross-examined in detail on 11.7.2018. Rest of her cross-examination was completed on 14.8.2018. She has been also examined on point of her statement under Section 164 Cr.P.C. No illegality or impropriety in the impugned order could be pointed out by learned counsel for the applicant. The court below has acted legally in not recalling the witness.

Therefore, the prayer to quash the impugned order dated 15.11.2019 is refused.

Accordingly, this application under Section 482 Cr.P.C. is dismissed.

Order Date :- 13.12.2019

Ashutosh Pandey

 

 

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