JUDGMENT

1. - This is an application under Section 482 Criminal Procedure Code in Sessions Case No. 93/88 against the order of the learned Sessions Judge dated 16-12-1988 where by he rejected the application for recalling the witnesses under Section 311, Criminal Procedure Code The sessions case was fixed on 15th and 16th December, 1988. On 15-12-1988 when the witnesses were produced before the Court, an application was moved by learned Counsel for the accused Shyamlal who was in custody that his file has been sent to Jaipur as the bail application of the accused is listed in High Court hence he could not prepare the case and the statements of the witnesses may be conferred. He also mentioned that he is prepared to pay the expenses of the witnesses according to the rules. This application of the petitioner was rejected by the learned Sessions Judge and he recorded the statement of witnesses PW 1 to PW 5. Learned counsel for the petitioner did not cross examine the witnesses since he was not prepared. On 16th December, 1988 when the witness appeared, he cross-examined them and moved an application for recalling the witnesses PW 1 to 5 for cross-examination but the said application was rejected vide order dated 16-12-1988. It is against this order that the present petition has been filed.

2. Learned counsel for the petitioner has submitted a certified copy of the bail order passed by this Court on 15-12-1988 and submitted that the learned Counsel for the petitioner had not made a lame-excuse for deferring the recording of the statements of witnesses and trial Court ought to have given him one opportunity. It is submitted that it would in the interest of justice to recall the witnesses because in such serious cases an accused should not be deprived of his right of cross-examination.

3. Learned Public Prosecutor has justified the order passed by the learned Sessions Judge.

4. I have considered the rival contentions and have perused the application dated 15-12-1988 and order thereupon, similarly the application dated 16-12-1988 and order there upon, along with the order passed by the Hon'ble Kapoor J. on 15-12-1988.

5. It cannot be said that there is any illegality committed in the order of the learned Sessions Judge because sending the file to the counsel in the High Court cannot be said to be a ground for seeking adjournment of the case unless the proceeding are stayed or there is some proceeding pending in the Higher Court due to pendency of which the propriety demands to defer the hearing of the case. There being none in the case, I do not find any illegality in the orders passed by the learned Sessions Judge but at the same time a balance has to be struck in a serious case like the present one where the accused petitioner is charged with an offence under Section 376, Indian Penal Code and the prosecutrix is not cross-examined at all. In view of the fact that the bail application of the accused-petitioner was listed before this Court on 15-12-1988, the date on which the witnesses came, mala fides cannot be attached to the learned Counsel and party should not be punished for the fault of the learned Counsel of not keeping the duplicate file with him or inspecting the record as advised by the learned Sessions Judge and in view of this matter, to secure the ends of justice, I deem it proper to direct the learned Sessions Judge to recall the witnesses PW 1 to PW 5 for the purpose of cross-examination. The cost of the witnesses shall be paid by the accused-petitioner.

6. Consequently, the petition is allowed and the learned Sessions Judge is directed to recall the witness for cross-examination.Petition allowed.

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