Court No. - 64

Case :- APPLICATION U/S 482 No. - 33606 of 2022

Applicant :- Puneet And Another

Opposite Party :- State of U.P. and Another

Counsel for Applicant :- Rakesh Kumar Srivastava

Counsel for Opposite Party :- G.A.

Hon'ble Saumitra Dayal Singh,J.

Upon reconsideration, learned counsel for the applicants states, the applicants do

not intend to file any supplementary affidavit.

Heard Shri Rakesh Kumar Srivastava, learned counsel for the applicants and

learned AGA for the State.

Present application has been filed to challenge the order dated 26.9.2022 passed

by Civil Judge (Junior Division), Jevar, Gautam Budh Nagar. Thereby, the

learned court below has rejected the application filed under Section 311 Cr.P.C.

moved by the applicants. Learned court below has rejected the application as not

maintainable and as one filed by way of delaying tactics. Learned counsel for

the applicants submits, since the trial is still pending, application is wholly

maintainable.

Then, it has been submitted, there is no delaying tactics adopted by the

applicants. The application is bonafide inasmuch as certain important questions

have remained to be put to two witnesses i.e. the complainant and his father.

Those had been specified in the application filed by the applicants. Last, it has

been submitted, the applicants are willing to pay cost for the prayer made.

The application has been opposed by learned A.G.A. He would submit, no good

ground has been disclosed to allow for recall of two prosecution witnesses. The

applicants were granted full opportunity to cross-examine those witnesses. The

applicants have availed their opportunities and the witnesses were cross-

examined. Merely because a different counsel has now been engaged by the

applicants, they cannot be permitted again to cross-examine the prosecution

witness.

Having heard learned counsel for the parties and having perused the record, in

the first place, learned court below has erred in observing that the application is

not maintainable. Non-maintainability of the application is a ground which

arises in the context of the statutory law and the relief claimed i.e., if the Act

does not permit any application or motion to be made to a Court or at any stage

of a proceeding, the same is often described as non-maintainable.

Insofar as Section 311 Cr.P.C. did not preclude the applicants from moving that

application, the observation made by the learned court below that the application

was not maintainable, is not accurate.

However, that inaccuracy of reasoning may not lead to any relief being delivered

to the applicants. In that, the application is seen to be not allowable. It is not in

doubt that the applicants had been granted opportunity to cross-examine the

prosecution witness being now sought to be recalled. That opportunity was

availed and detailed cross-examination appears to have been made. Without

establishing how that cross-examination availed was incomplete, it never

became open to the applicants to claim recall of the witness. The application

referred to by learned counsel for the applicants only brings out that the

applicants changed their counsel.

Perhaps occasioned by that, a different line of defence is being intended. That

may not be the purpose of Section 311 Cr.P.C. Unless it had been shown to the

Court that cross-examination made was woefully short of the requirement of the

defence, recall of witness may not be granted lightly, for the mere asking.

Though three lines of questioning have been disclosed in that application, it is

nowhere suggested how those questions would have any vital impact on the

outcome of the trial.

In view of the above, learned court below has not erred in rejecting the

application as the delaying tactics. No interference is warranted at this stage.

Accordingly, present application is dismissed.

Order Date :- 17.1.2023

Prakhar

Digitally signed by :-

PRAKHAR SRIVASTAVA

High Court of Judicature