Point of Law: Examination-in-chief – Witnesses - Merely providing a witness in such a situation for cross-examination would be of no consequence because witness has to be re-heard keeping in view principle of de novo trial which includes examination-in-chief as well.

JUDGMENT :

Dinesh Kumar Singh-I,J.

Sri Anoop Trivedi, learned Senior Advocate assisted by Sri Atul Kumar Shahi, learned counsel for the applicant, Sri Irfanul Huda, learned counsel for the O.P. No. 2 and Sri Rishi Chaddha, learned A.G.A. for the State are present.

The prayer is made for quashing the order-sheet dated 12.02.2021 passed by Additional Sessions Judge/ Special Judge (Prevention of Corruption Act), Court No. 1, District, Gorakhpur passed in S.T. No. 19 of 2015 (State Vs. Govind Yadav and others) arising out of Case Crime No. 463 of 2014 under Sections 147, 148, 149, 307, 302, 386, 396 and 504 I.P.C., P.S. Khorabad, District Gorakhpur.

By the impugned order, Application 136 (kha) moved by the accused applicant, has been rejected under Section 319 (4)(a) Cr.P.C. wherein prayer was made that prosecution witness, P.W. 1 should be re-summoned for recording his examination-in-chief as said provision required de novo trial. Further it was mentioned in the said Application that provision of Section 319 (4)(a) was not followed by the court below as it did not record the examination-in-chief of the said witness. The said witness is informant of this case who has given an Application/F.I.R. at the police station (Exhibit Ka-1) which was proved by him.

From the side of prosecution, objection was submitted before the court below stating that charge-sheet was not submitted against the accused applicant and after the conclusion of statement of P.W. 1, Shiv Pratap Yadav @ Sadhu Yadav, on 17.08.2015, an Application under Section 319 Cr.P.C. was given whereon the Court had passed an order on 18.07.2016 summoning the said accused i.e. Vidyadhar Dubey @ Bablu Dubey finding prima-facie case made out against him and issued N.B.W. against the said accused for his appearance before the Court on 26.09.2016, thereafter the trial court in consonance with the provisions provided under Section 319 (4) (a) and (b), framed charges against the accused and, thereafter the said witness, Shiv Pratap Yadav @ Sadhu Yadav (P.W.1) was proposed to be re-examined but learned counsel for the said accused i.e. applicant gave in writing that the examination-in-chief of Shiv Prasad Yadav @ Sadhu Yadav had already been recorded on 17.08.2015 and, therefore, he was ready to cross-examine the said witness. Pursuant to that, the court below provided the accused applicant opportunity to cross-examine the said witness and the same was concluded. The said fact is evident from the order-sheet dated 22.11.2016 and order-sheets of subsequent dates. Therefore, it was submitted from the side of prosecution before the Court below that no legal error was committed of the principles of law laid down under Section 319 (1)(4) (a) and (b) and, therefore, the said application ought to be dismissed having no force.

After having heard both the sides, the court below has recorded in the impugned order that on 22.11.2016, P.W. 1, Shiv Prasad Yadav @ Sadhu Yadav was present in Court and accused Bablu Dubey @ Vidyadhar Dubey (applicant) also remained present in Court and his learned counsel had endorsed on the order-sheet in Hindi that he was ready to cross-examine the informant on the basis of his earlier recorded examination-in-chief dated 17.08.2015. Therefore, in pursuance of that undertaking/written endorsement, learned counsel for the accused applicant started cross-examination of P.W. 1, which could not be concluded the same day, therefore, on the next date also, his cross-examination was recorded and concluded. Thereafter P.W. 2 to P.W. 9 were also recorded fully in presence of the accused applicant and during the entire evidences of nine witnesses having been recorded, counsel for the accused applicant remained present, therefore, it cannot be said that provisions of Section 319 (4)(a) Cr.P.C. was not followed and, hence Application under Section 136 (kha) was found without force and was recorded that there was no need for recording the examination-in-chief of P.W. 1 again i.e. de