- (1.) M. K. Mittal, J. This application has been filed under Section 482 Cr. P. C. to quash the amended charge dated 4-1-1994, order dated 21-4-2003, 14-12-2005 and the entire proceedings in Sessions Trial No. 195 of 1991 State v. Mansur Ahmad and Ors. , under Sections 302, 307, 34 IPC, P. S. Dhumanganj, District Allahabad, pending in the Court of Addl. Sessions Judge, Room No. 2 Allahabad.
(2.) HEARD Sri L. K. Pandey, learned Counsel for the applicants, learned A. G. A. and perused the record. Brief facts of the case are that the complainant Maqbool Ahmad filed an F. I. R. on 9-6-1990 alleging that the accused applicants fired with their guns at his father Mehboob, his brother Mashooq Ahmad and Puddan. In this incident, Mashooq Ahmad died at the spot, Mahboob died in the hospital and Puddan also received firearm injuries. After investigation charge-sheet was submitted and charges were framed on 4-1-1994. The parties led their evidence and arguments were heard and the case was fixed for judgment. Before delivery of judgment, learned Sessions Judge on 21-4-2003 found that there was some clerical mistake in the charge and that additional charge was also to be framed. Consequently he amended the charge as framed on 4-1-1994 and in place of Suddan, Puddan was substituted as the name of the injured person. Learned Judge also framed additional charge No. 3 which was read over and explained to the accused applicants. Learned Trial Court asked the prosecutor if he wanted to give any additional evidence and the learned A. D. G. C. (Crl) stated that no further evidence was to be given. Learned Counsel for the accused appellants, was also asked if he wanted to further cross-examine any witness and he expressed his desire to further cross-examine the witnesses and therefore, the date was fixed for evidence and the prosecutor was directed to produce the witnesses already examined. Inspite of sufficient time given to prosecution, it could not produce the witnesses and on 19-10-2005 witness P. W.-1 was present but was not produced for cross-examination and learned Trial Court fixed 25-10-2005 for arguments in the case. Thereafter learned Counsel for the State moved an application on 10-11-2005 for setting aside/recalling the order dated 19-10-2005 whereby the evidence was closed and prayed that prosecution be allowed to produce the witness P. W.-1 Maqbool Ahmad for further cross-examination. Learned Trial Court by order dated 10-11-2005 allowed this application and directed that Maqbool Ahmad shall appear on 11- 11-2005 for cross-examination as learned defence Counsel was not feeling well on 10-11-2005 and was unable to cross-examine the witness on that date. On 11-11-2005, P. W.-1 Maqbool Ahmad was present and was further cross-examined by the defence. Since other witnesses were not present, application for adjournment was filed by the learned State Counsel and hearing was adjourned.
(3.) ON 16-11-2005, accused moved an application for rejection of the application filed by the learned State Counsel as the prosecution evidence had been closed and the order was final and the witnesses could not be recalled under Section 311 Cr. P. C. as this provision could not be used to fill the lacuna of the prosecution. ON 21-11-2005, P. W. 2 Puddan was present in the Court and application was filed by the learned State Counsel for permitting his further cross-examination. Time was taken by the accused for filing objection. Learned Trial Court by impugned order dated 14-12-2005 allowed the application filed by the State Counsel on the ground that after the framing of the additional charge, Court was required to give opportunity for further cross- examination to the witnesses. It was directed that in compliance of the order dated 21-4-2003, it was necessary that the witnesses be further cross- examined. Accused wanted time to file a petition against this order in the High Court and the learned Trial Court passed a separate order the same day that since defence Counsel was showing his inability to cross-examine P. W.-2 and the case is very old i. e. of the year 1991, therefore, he closed the opportunity of the defence for further cross-examination of Puddan P. W. 2. Feeling aggrieved this application has been filed. Learned Counsel for the applicants has contended that the learned Trial Court did not read and explain the amended charge as required under law and that the application of the learned State Counsel was wrongly allowed after it had closed the evidence and that the opportunity to cross-examine Puddan has been wrongly denied and that a de-novo trial is required.;