HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Criminal Miscellaneous (Petition) No. 6521/2023 Shahista Daughter Of Shri Niyamat Ali, Aged About 32 Years, Resident Of 34, Gandhi Vihar, Kareem Nagar, Thana Kho Nagoriyan, Jaipur (Raj.)

----Petitioner Versus

1. State Of Rajasthan, Through Public Prosecutor

2. Babu Khan Son Of Shri Masit Khan, Resident Of Dhani Chopta Ki, Village Kho Nagoriyan, Thana Malviya Nagar, District Jaipur.

----Respondents For Petitioner(s) : Mr. Sunil Tyagi For Respondent(s) : Mr. Amit Punia-PP JUSTICE ANOOP KUMAR DHAND

Order

24/11/2025

1. By way of filing this criminal misc. petition, a challenge has been led to the impugned order dated 10.05.2022 passed by the Additional Chief Metropolitan Magistrate No.2, Jaipur Metropolitan- II by which the application submitted by the petitioner under Section 311 Cr.P.C. for re-summoning the witness PW-4 Rishipal Singh for the purpose of cross examination, has been rejected.

2. Aggrieved by the aforesaid order, a revision petition was submitted before the Court of Additional District and Sessions Judge No. 9, Jaipur Metropolitan-II and the same was also rejected and the Court below held that the impugned order being an interlocutory order, a revision petition would not be maintainable against the same.

3. Counsel for the petitioner submits that the petitioner is facing trial for the offences under Sections 419 and 420 IPC before the trial Court wherein the statements of PW4- Rishipal Singh were recorded on 14.10.2019 but no cross-examination was done by the counsel of the petitioner as he was busy in some other case and on the same day, the petitioner’s opportunity of cross- examination was closed. Counsel submits that unless and until the petitioner is given an opportunity to put forth his defence in the cross-examination of the witness, he would not be in a position to plead his case, therefore an application was submitted by the petitioner for re-summoning of the aforesaid witness for the purpose of cross-examination. However, request has been turned down, hence the petitioner has approached this Court. Therefore, a last opportunity be granted to the petitioner subject to payment of cost to the prosecution.

4. Per contra, learned Public Prosecutor opposed the prayer and submitted that opportunity to cross-examine to the petitioner was closed by the trial Court on 14.10.2019 but no application was submitted by the petitioner immediately. The petitioner was silent for a considerable amount of time and almost after two and half years, the application under Section 311 Cr.P.C. has been submitted on 10.05.2022, hence the trial Court has not committed any error by rejecting the same by holding that the case is lying pending against the petitioner since 2014, hence, interference of this Court is not warranted.

5. Heard and considered the submissions made at Bar and perused the material available on record.

6. This fact is not in dispute that the petitioner is facing trial before the trial Court since 2014. This fact is not in dispute that the statements of witness PW4- Rishipal Singh were recorded on 14.10.2019. This fact is also not in dispute that on the said date, when the cross-examination was not done by the counsel of the petitioner, the petitioner’s opportunity of cross-examination was closed. This fact is not in dispute that no application under Section 311 Cr.P.C was submitted by the petitioner immediately but the application was submitted on 10.05.2022 after a period of more than two years.

7. Now the question which remains for consideration before this Court is whether the accused can be deprived of the opportunity to put his defence by way of cross-examination of the material witness only on a technical count that the petitioner’s lawyer was busy in some other Court?

8. The record reveals that for the first time the witness PW4- Rishipal Singh appeared in the Court below on 14.10.2019 and on the same day, the petitioner’s opportunity of cross-examination was