1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR O R D E R S.B.CRIMINAL MISC.PETITION NO.733/2009 (Jitendra Dhariwal Vs. The State of Raj.) S.B.CRIMINAL MISC. PETITION UNDER SECTION 482 CR.P.C. ***** DATE OF ORDER : 18th MAY, 2009 HON'BLE MR.JUSTICE S.P.PATHAK Mr.S.R.Bajwa Sr.Advocate assisted by Mr.Rakesh Chandel Advocate, for the petitioner Mr.Bhavnish Kumawat, Public Prosecutor BY THE COURT: This criminal misc. petition has been filed under Section 482 Cr.P.C. with the prayer to set aside the order passed by the learned Special Judge (Man Singh Murder/Communal Riots Cases), Jaipur City, Jaipur in Cr.Case No.26/98 titled as State vs. Jitendra Dhariwal, whereby the trial court declined to adjourn the case and closed the cross examination. Briefly stated the facts of the case for disposal of this petition are that on 30.6.2000 witness Parmeshwar was present and counsel for the petitioner was not present. The trial court on finding that the witness was present since 8 O' Clock in the morning and in a planned manner, it was chosen not to cross examine witness Parmeshwar unless he becomes hostile. The trial court further found that the petitioner refused to get cross 2 examination done from the Amicus Curiae P.C.Bhandari and also it came to the notice of the trial court that the witness was given threatening to the effect that if the witness deposes against him, he will be killed. The trial court in the above circumstances also found that several opportunities were given on previous occasions to cross examine the witness and since the witness was not being cross examined, closed the cross examination vide order 30.6.2000. It appears that nothing in the matter was done and statements of several witnesses were recorded and ultimately on 5.12.2001 counsel for the petitioner moved an application under Section 311 Cr.P.C. to recall the witness. The trial court rejected the application moved on 5.12.2001 on 7.12.2001 holding that the earlier order passed attained finality. Hence this petition has been filed. I have heard Mr.S.R.Bajwa Sr.Advocate appearing on behalf of the petitioner and the learned Public Prosecutor for the State and carefully perused the material available on record. It has been contended by the learned counsel that in the instant case, the trial court committed serious illegality in not allowing the application to recall the witness or to provide opportunity to cross examine the witness P.W.5 Parmeshwar. It is contended that in the absence of cross examination, the petitioner will not be able to defend himself and matter will be decided finally on the basis of evidence recorded without affording opportunity to cross examine the witness. It is 3 contended that though on previous occasion against the order dated 7.12.2001 rejecting the application moved under Section 311 Cr.P.C., S.B.Cr.Misc. Petition No.1355/2001 was filed before this Court, the same was dismissed by this court holding that the order passed on 30.6.2000 attained finality and that was not challenged. It is contended that since on previous occasion, the order dated 30.6.2000 was not challenged, thereby the right to cross examine the witness was closed by the trial court, therefore, now the present petition has been filed. It is also contended that in fact at the initial stage a revision petition was filed in the present matter but subsequently the Co-ordinate Bench of this Court vide order dated 21.4.2009 finding that in the order dated 30.6.2000 was revisable, therefore, converted the revision petition into Cr.Misc. Petition. It is contended that since the revision petition filed in the present matter has been converted into cr.misc. Petition by the same learned Judge of this Court, therefore, the observations made by this Court while dismissing earlier Cr.Misc. Petition No.1355/2001 on 27.3.2009 will not affect the merits of the case and this Court can independently without being influenced by the earlier order dated 27.3.2009 should pass appropriate orders to do justice. On the other hand, the learned Public Prosecutor has contended that the petition is liable to be dismissed for the reason that in relation to witness P.W.5 Parmeshwar the order dated 7.12.2001 was challenged and this Court has already dismissed the Cr.Misc. Petition, therefore, now this Court is not 4 sitting as a court of review or court of appeal and to pass order or make observation in relation to the earlier order passed by the Co-ordinate Bench of this Court on 27.3.2009. I have carefully considered the submissions made before me. It is to be seen that in the instant case, first order in relation to witness P.W.5 Parmeshwar was passed on 30.6.2000. The learned trial court passed a detailed order assigning reason that inspite of providing opportunities several times no cross examination was done, therefore, closed the right to cross examine. It further appears that after nearly six months an application in relation to the same witness was moved under Section 311 Cr.P.C. to recall the witness. The trial court rejected the application on 7.12.2001, that order was challenged in S.B.Cr.Misc. Petition No.1355/2001 and this Court while dismissing the petition in para 6 of its order dated 27.3.2009 observed as under:- “Having given my thoughtful consideration to the facts and circumstances of the case and on careful perusal of the order impugned, I am of the considered opinion that a number of opportunities for cross-examination of the witness had already been given to the defence. As a matter of fact, on one occasion the case was only kept for the purpose of cross-examination of the witnesses but even then the defence had failed to do so. It was only after the closure of the prosecution evidence on 30.06.2000, which had attained finality, that the application under Section 311 Cr.P.C. had been filed for recalling of the same witnesses, who had appeared before the trial court on many occasions earlier but the defence, for the reasons best known to them, had not cross- examined them.” 5 Thus, it appears that in relation to witness P.W.5 Parmeshwar the Co-ordinate Bench of this Court has applied its mind and finding that number of opportunities were given to cross examine the witness but the witness could not be cross examined, therefore, since the order dated 30.6.2006 attained finality, the application moved by the petitioner under Section 311 Cr.P.C. was not liable to be allowed. The order passed by the learned Co-ordinate Bench is in detail and leaves no manner of doubt that the issue which has been raised for decision of the case in this Cr.Misc. Petition has already been considered. The learned counsel has also cited a decision rendered by the Hon'ble Apex court in the case of Badri vs. State of Rajasthan reported in 1976(1) SCC 442, but the above case is not of any help to the petitioner in the facts and circumstances of the case. It was in that case, the witness appeared in the court but was not allowed to be cross-examined on material points. Here in the present matter, factual aspect is different. The witness was present on several occasions as has been observed by the Co-ordinate Bench and also by the trial court. Therefore, the order passed closing the right to cross examine the witness and that order was not challenged and subsequently an application was moved to recall the witness that application was rejected and petitioner having felt aggrieved preferred Cr.Misc. Petition before this Court and the same was dismissed on 27.3.2009. Therefore, I am of the opinion that on the previous occasion when the matter has already been considered by the 6 Co-ordinate Bench of this Court, in view of specific observation made by the Co-ordinate Bench, therefore, now there appears no case to set aside the order passed by the trial court on 30.6.2000. The petition is devoid of merit and is liable to be dismissed. Consequently, the petition stands dismissed. (S.P.PATHAK) J. BKS/-