Court No. - 69

Case :- APPLICATION U/S 482 No. - 2376 of 2023

Applicant :- Kamlesh Kumar

Opposite Party :- State Of U.P. And 3 Others

Counsel for Applicant :- Subhash Gosain

Counsel for Opposite Party :- G.A.

Hon'ble Samit Gopal,J.

Sri Subhash Gosain, learned counsel for the applicants,

Ms. Arti Agrawal, learned counsel for the State and

perused the record.

This application under Section 482 Cr.P.C. has been filed

by the applicant Kamlesh Kumar with the prayer to allow

this application and quash the order dated 16.11.2022

passed in Sessions Trial No. 656 of 2021 (State vs.

Kamlesh Kumar) arising out of Case Crime No. 212 of

2021, under Sections 363 & 376 of IPC and Section 3/4

Protection of Children from Sexual Offences Act, 2012,

Police Station- Badagaon, District Varanasi and grant

opportunity to the counsel for the accused-applicant at the

trial court to complete cross examination of prosecution

witness No.2 in the aforesaid sessions trial and with

further prayer that further proceedings of the aforesaid

case be stayed against the applicant during the pendency

of the present application.

The applicant is the sole accused in the trial which he is

facing. The facts in brief are that trial of the said case was

continuing in which the statement of Jai Prakash was

being recorded as PW-2 on 16.11.2022. His examination-

in-chief concluded, after which he was being cross-

examined by the defence. Subsequently, an application

was moved by learned counsel for the accused that he is

unable to cross-examine the said witness further as he is

not fully prepared with the matter and, as such, some date

may be fixed for the same in the interest of justice. The

said application stood rejected vide order dated 16.11.2022

passed by the trial court, the copy of which is annexed as

Annexure-6 to the affidavit. The trial court closed the

statement of the said witness and directed the matter to be

put up on 15.12.2022 with the direction that other

witnesses be summoned for their statements. Learned

counsel for the applicant argued that the approach of the

trial court in rejecting the application for adjournment,

which was passed on cogent ground, is totally illegal and

further the approach of the trial court in closing the

statement of the said witness and directing the other

witnesses to be summoned for their evidence is also illegal

inasmuch as there was no effort for delaying the trial but

since the said witness i.e. Jai Prakash (PW-2) was

examined on the same day and his examination-in-chief

was recorded and further some cross-examination was

done on him after which the learned counsel for the

accused felt that he needed some time for preparation of

the matter for further cross-examination would in no

manner show that there was an effort to unnecessarily get

the trial adjourned. It is argued that the accused has a right

of a fair trial. The moving of the application for

adjournment was not for any other reason which would go

to show that the trial court was been unnecessarily

requested for being adjourned. Learned counsel for the

applicant assures the Court that if Jai Prakash (PW-2) is

summoned, the learned counsel for the accused will

complete his cross-examination on the same day itself of

his appearance without seeking any adjournment and if for

any reason the same is not complete, the matter may be

posted for the next day for the remaining cross-

examination.

Learned counsel for the State opposed the prayer made in

the petition.

After having heard learned counsel for the parties and

perusing the entire record it is evident that the

examination-in-chief of Jai Prakash (PW-2) was done after

which his cross-examination was being done and then the

learned counsel for the applicant moved an application for

taking a short adjournment in the matter by stating that he

is not fully prepare