S.C.AGARWAL, J. - (1.) LEARNED Counsel for the petitioner is permitted to make cor­rection in the prayer of the writ petition. The order passed by A.C.J.M., Court No. 8, Bareilly in Criminal Case No. 1384 of 2007 (State v. Hari Om) under section 304-A IPC, P.S. Killa, District-Bareilly and order dated 5.5.2010 passed by the Sessions Judge, Bareilly in Criminal Case No. 189 of 2010 are under challenge in this writ peti­tion. Heard learned Counsel for the peti­tioner and learned AGA for the State.
(2.) SINCE the impugned orders arises out of a police case, there is no need to issue notice to the respondent No. 2. The application under section 311 Cr. P.C. moved by the petitioner for recalling P.W.-1 for cross-examination was rejected by the Magistrate and the revision was also dis­missed. It appears that 4.9.2009 was fixed for prosecution evidence. On that date, an application for exemption from personal appearance was moved by the petitioner, which was allowed. Examination-in-chief of Ashok Kumar (P.W-1) was recorded. Counsel for petitioner remained absent and therefore, opportunity for cross-examination was closed. Subsequently, an application under section 311 Cr. P.C. was moved by the petitioner for recalling P.W.-1 for cross-examination, which was dis­missed by the Magistrate and the revision was also dismissed. The orders passed by learned A.C.J.M. and learned Sessions Judge cannot be sustained. The ground given by the Magistrate is that the application for ex­emption was moved by the accused but his Counsel was also not present. If the Coun­sel was nor present, the Magistrate was free to reject the application for exemption and could have taken coercive steps to procure the attendance of the petitioner but the examination-in-chief P.W.-1 could not have been recorded behind the back of the ac­cused or his Counsel. Further it is estab­lished law that no one should be condemned unheard. If the opportunity for cross-examination of P.W.-1 is closed, it would cause prejudice to the petitioner. In my opinion an opportunity should have been granted to the petitioner for cross-examination of P.W.-1
(3.) THE writ petition is allowed. Order dated 6.4.2010 passed by the Magistrate and order dated 5.5.2010 passed by the Sessions Judge are quashed. The applica­tion under section 311 Cr. P.C. moved by the petitioner stands allowed and the learned Magistrate is directed to provide opportunity to the petitioner for' cross-examination of P.W.-1. Thereafter the case shall proceed in accordance with law.;