- (1.) The applicant, Shameem @ Kala, through this application under Section 482 Cr.P.C. has invoked the inherent jurisdiction of this Court with a prayer to quash the order dated 21.8.2015 and order dated 5.7.2016 passed by the Additional Sessions Judge, Court No. 7, Bijnor in Sessions Trial No. 566 of 2014 (State Vs. Shameem @ Kala) under Sections 452, 307, 506 IPC, P.S. Heempur, District Bijnor arising out of Case Crime No. 142 of 2012 and direct the court below to summon the PW-5 to PW-7 for cross examination.
(2.) It is submitted by the learned counsel for the applicant that this petition is filed against the order dated 21.8.2015 and order dated 5.7.2016 passed by the Additional District Judge, Court No. 7, Bijnor in Sessions Trial No. 566 of 2014 (State Vs. Shameem @ Kala) under Sections 452, 307, 506 IPC, P.S. Heempur, District Bijnor arising out of Case Crime No. 142 of 2012 whereby the learned Additional Sessions Judge has closed the opportunity of accused/applicant to cross examine the PW-5, Sub Inspector, Daya Ram Arya, PW-6, Dr. Dharya Kumar Jain and PW-7, Constable Sohan Lal Singh. It is further submitted that after examining PW-1 to PW-3, the statement of PW-4, Dr. Arbind Kumar was recorded. During cross examination, it appears that the Presiding Officer is not recording the statement as per answer given by the prosecution witness. Certain objections were raised by the counsel for the applicant and the Court made corrections in the statement but the Presiding Officer also expressed the opinion that the result of trial will be in conviction. On 13.8.2015, 21.8.2015 and 23.11.2015 the statements of Sub Inspector Daya Ram Arya, Dr. Dharya Kumar Jain and Constable Sohan Pal Singh were recorded as PW-5 to PW-7 in the Court but the witness could not be cross examined and adjournment application was rejected. The applicant moved an application for recalling the said witness but the same was also rejected. Therefore, applicant moved application under Section 408 Cr.P.C. for transferring the Session Trial to another Court. Learned Sessions Judge after considering the grievance of applicant, transferred the Session Trial to the Court of A.S.J., Court No. 3. It is further submitted that for the just decision of case, cross examination is very much essential and learned court without any valid reason struck down the opportunity to cross examine the aforesaid witnesses.
(3.) Learned AGA submits that no useful purpose would be served in keeping this petition pending before this Court and the same may be disposed of at this stage. The only prayer made by the applicant is that the Additional Sessions Judge, Bijnor be directed to recall PW-5 to PW-7 for cross examination as the opportunity to cross examine the witness has been declined. Closing the opportunity for cross examination is not the solution of this problem. If the accused were misusing the liberty of bail and were not cooperating in the due progress of the case and failed to cross examine the witness despite sufficient opportunity, it would have to proper to cancel the bail in stead of closing the opportunity of the cross examination. No one should be condemned unheard. Section 311 Cr.P.C. runs as follows: "Power to summon material witness, or examine person present. 311. Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case." ;