Karuna Nand Bajpayee, J. - (1.) This application u/s 482 Cr.P.C. has been moved on behalf of applicant Durgawati Devi seeking the quashing of order dated 16.12.2017 passed by the Additional Sessions Judge/Special Judge E.C. Act, Gorakhpur in Sessions Trial No.132 of 1994, u/s 302, 307 I.P.C. (State vs. Raghunath and others), pending in the court of Additional Sessions Judge/Special Judge, E.C. Act, Gorakhpur, whereby the application seeking the recall of defence witness for his cross-examination has been rejected.
(2.) Heard learned counsel for the applicant.
(3.) Submission of counsel for the applicant is that the defence witness who is being sought to be recalled for cross-examination now on behalf of applicant was summoned to be produced in defence of the accused in the year 2005 and this fact is undisputed that he did not turn up for almost 11 years. Counsel has tried to show the entire developments that took place during this intervening period and has also shown the relevant portion of the impugned order which also indicates the same fact that the witness was summoned in the year 2005. Eventually he turned up on 02.11.2016. But it appears that on the date when the defence witness Shri J.S. Siddhu appeared in the court, the special counsel who was conducting the matter did not appear in the court and in such a situation after recording the examination-in-chief, the evidence of defence witness was closed. It has been further submitted that subsequently the special counsel Mr. P.N. Mishra died and another counsel Shri Ashok Kumar Dubey was appointed to look after the prosecution of the case. He after discovering the importance of the witness thought it fit to seek the recall of the same and moved an application to the same effect so that his cross-examination may be done. It was pointed out that the witness who was produced in the defence is not a person of no significance and in fact is a witness of great significance and his testimony would go a long way to affect the fate of the trial, therefore if his testimony remains untested by cross-examination, the same may lead to misleading conclusions. It has been sought to be argued by the counsel that in fact the cross-examination of the aforesaid witness would be essential to arrive at a just decision in the case and if the aforesaid witness goes uncross-examined, this may impede the process of arriving at correct judicial conclusions at the time of final adjudication in the case. It was emphasized by the counsel that sometimes when the witnesses turn up after such a prolix period of time then it is not very unexplained that the counsel might not have been expecting the witness to be present on that particular date and might have failed to appear in the court. It was further pointed out that in fact the application that has been moved on behalf of present special counsel shows that the reason for the earlier prosecuting counsel's absence was that he was down with illness. Argument is that this is a fit case in which the prosecuting counsel ought to have been accommodated. At any rate, the contention is that the Court ought to have exercised its extra-ordinary jurisdiction u/s 311 of Code of Criminal Procedure. Submission is that this is also a case in which even otherwise he could have used his judicial discretion to allow the recall of defence witness for further cross-examination in accordance with the provisions of Criminal Procedure Code as the reasons for closing his evidence were not very proper. Further submission is that in fact it appears from the perusal of the impugned order that as this matter is a very old one, which has been dragging for such a long period of time, the court below was conscious about the old pendency of the trial and therefore under the pressure of that situation the court below did not deem it fit to recall the witness for cross-examination without appreciating the fact that the witness itself had turned up after more than a decade and every one was taken unawares.;