S.S. Kulshrestha, J. - (1.) This application under Section 482 of the Code of Criminal Procedure has been brought for quashing the order dated 23-8- 2002 passed by the Sessions Judge, Baghpat in S.T. No. 6/99, State v. Bhakhat @ Sansar Pal and others . It is said that the minor girl of the complainant was abducted by the accused persons and was raped. The police after extensive investigation submitted charge sheet against the applicant and other accused persons. They were committed to the court of Session. Trial (S.T. No. 6 of 1999) commenced after framing of the charges against the accused persons arraigned in the charge-sheet. Prosecution examined six witnesses in that case. Statement of P.W. 1 Mohan Sharma, P.W. 2 Shiv Narain Sharma, and constable Paluram remain unconcluded for the reason that on several dates, applications were moved on behalf of the accused or their counsel for adjournment. The case was lastly fixed for remaining cross-examination of these witnesses on 11-1- 2000 where too also an application was moved on behalf of the accused persons for adjournment. Lastly trial court finding justification in the ground so set up, allowed that application and fixed 6-9-2002 for cross-examination of P.W. 1 Mohan Sharma and P.W. 2 Sri Shiv Narain Sharma.
(2.) As against this order, present application has been moved. Emphasis has been laid that the victim girl has since married and with the view to harass and malign her and her in-laws accused persons have filed affidavits. It is further urged that the expenses of the witnesses would be born by the accused and no further time be given to them for further cross-examination. As regards factual aspects of this case, the witnesses namely Mohan Sharma, P.W.1 and Shiv Narayan Sharma, P.W. 2 were produced by the prosecution. Their cross examination remained unconcluded as would also appear from the impugned order. The crucial question to be examined in this case is as to whether the opportunity should be given to the accused to complete the unconditional cross- examination. It has been submitted on behalf of accused applicant that the statement of both the prosecution witnesses 1 and 2 shall be inadmissible under Section 33 of the Evidence Act, 1872 (the 'Act' for short) as the accused could not have full opportunity to cross-examine them. It may be useful to refer Section 33 of the Act which runs as under : "S. 33. Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated.-Evidence given by a witness in a judicial proceeding or before any person authorised by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable : Provided that the proceeding was between the same parties or their representatives in interest; that the adverse party in the first proceeding had the right and opportunity to cross-examine; that the questions in issue were substantially the same in the first as in the second proceeding. Explanation.-A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section."
(3.) Full opportunity is required to be given to the accused for recording statement of the witnesses. Looking to the facts and circumstance of the case, trial court is directed to fix a date for recording the statement of these witnesses who shall be called on the expenses of the accused. No further adjournment shall be given on either grounds and the case should be disposed of expeditiously. This application is disposed of accordingly. Order Accordingly;