1 2025:CGHC:45444 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRR No. 1112 of 2019 Birendra Singh @ Ruby Singh S/o Late Om Prakash Singh Tomar Aged About 38 Years R/o Pujari Nagar, Police Station Tikrapara, Raipur Chhattisgarh., District : Raipur, Chhattisgarh ... Applicant versus State Of Chhattisgarh Through The District Magistrate, Raipur Chhattisgarh., District : Raipur, Chhattisgarh ... Respondent For Applicant : Mr. Vivek Mishra , Advocate For Respondent : Mrs. Pragya Shrivastava, Deputy Govt. Advocate Hon'ble Shri Parth Prateem Sahu, Judge ORDER ON BOARD 04/09/2025 1. This revision has been preferred against the order dated 21.08.2019 passed by learned Second Additional Judge to First Additional Sessions Court, Raipur (C.G.) in Session Trial No. 293/2013 whereby, the application preferred by the applicant/accused under Section 311 of Cr.P.C was rejected. ALFIZA BAIG Digitally signed by ALFIZA BAIG Date: 2025.09.09 16:24:03 +0530 2 2. Facts of the case, in short, is that a criminal trial is going on for the offence under Section 302 of Indian Penal Code against the applicant. It is alleged by applicant that he has filed an application under Section 311 of the Code of Criminal Procedure and sought for recalling or re- examination of Dr. G.S. Gauhari Kamila, Assistant Director Hyderabad (Telangana), Nasir Bathi Investigation Officer, Dr. S.K. Bagh Medical Officer and Ashok Sharma another Investigating Officer. The said application got rejected, and being aggrieved of that applicant filed a revision petition bearing CRR No. 933/2017 before this Court, which got allowed in part vide order dated 05.02.2018, thereby permitting re- examination of Dr. G.S. Gaurhari Kamila and Dr. S.K. Bagh. Accordingly, Dr. G.S. Gaurhari Kamila got her statement recorded and cross-examined by applicant’s counsel but Dr. S.K. Bagh was subjected to some unprecedented reception and was scolded by learned trial Court for his inability to appear. Thereafter, Dr. S.K. Bagh filed an application supported with an affidavit dated 16.06.2019 and permission from learned Sessions Court for getting his statement recorded in some other Court. However, despite there being no decision on the application, trial was proceeded. 3. Learned counsel for petitioner submits that the action on the part of learned Trial Court in closing the opportunity to cross-examine witness Dr. S.K. Bagh is highly arbitrary. Learned trial Court has over looked vital facts that applicant was arrested in another crime and, therefore, he could not engage counsel of his choice. It is also contended that closing opportunity of cross-examning the witness i.e. Dr. S.K. Bagh will lead to depriving applicant to defend himself in the criminal case 3 registered against him in an appropriate manner. He also contended that trial Court has post the applicant to cross-examine witness even when application for transfer of the case was filed before learned Sessions Judge. 4. Learned counsel for State opposes the submission made by counsel for applicant and would submit that ample opportunity has been given to applicant before learned trial Court for examining/cross-examining two witnesses which was ordered in Criminal Revision No. 933/2017. She also referred paragraphs of the impugned order Annexure A-01 in support of her contention. 5. I have heard learned counsel for the parties and also perused documents placed on record. 6. Perusal of the impugned order would show that learned Trial Court has mentioned, order of this Court in CRR No. 933/2017 dated 05.02.2019 and it is also mentioned that on 24.10.2014 Dr. G.S. Gourhari Kamila was examined and Dr. S.K. Bagh appeared before the Court on arrest warrant issued to him by the Trial Court. It is also mentioned that even when Dr. S.K. Bagh who has been produced before the Court pursuant to arrest warrant issued by the Trial Court, applicant refused to cross- examine the witnesses on that date. The Court further observed that applicant was appearing before the Trial Court without any advocate since 22.06.2019 i.e. for last about two months. On 22.07.2019 Trial Court also advised applicant to engage a counsel, so that witness could be examined in a proper way. On the said date also he was cautioned that no opportunity for cross- examination will be given in absence of advocate on his behalf. He again appeared without 4 advocate on 02.08.2019. However, he was again advised by the Court to engage a counsel and if he is financially not sound to engage a counsel he may take assistance from the District Legal Service Authority, Raipur. But on the date of hearing i.e. on 21.08.2019 he again appeared without any advocate and sought time to cross- examine witness Dr. S.K. Bagh. The relevant paragraph of the impugned order is extracted below for ready reference:- “Hon’ble High Court has allowed the application of under Section 311 of Cr.P.C. vide order dated 05.02.2018 passed in CRR No. 233/2017 and in compliance of aforesaid order witness Dr. Gourhari Kamila and Dr. S.K. Bagh were ordered to summon. Dr. Gourhari Kamila has been examined on dated 24.10.2018 and in pursuance of the arrest warrant Dr. S.K. Bagh has appeared on today for evidence. But the accused has not cross-examined the witness and requested for a date. On perusal of case it also revealed that in the present case the accused is appearing without any advocate since 22.06.2019. On dated 22.07.2019 accused has been specifically directed to engage his counsel so that the witness could be cross-examined on the next of hearing. On that date he was also directed no opportunity for cross-examination will be given in absence of any advocate on his behalf. But even after the said direction he did not engage any counsel, so on the next date of hearing dated 02.08.2019 he was again specifically directed either engage a counsel, or if he has no capacity for engaging the counsel than he may get the assistance of an advocate from District Legal Services Authority, Raipur. But he did not prefer to take any assistance from District Legal Service Authority, Raipur. On the last date of the hearing he has been again specifically directed that opportunity for cross-examination will not be granted only on the ground of non appearance of the advocate. Even after the aforesaid direction too, the accused has not engaged any counsel and sought adjournment for cross-examination of witness Dr. S.K. Bagh. The aforesaid conduct of the accused shows that he has made the mockery of the judiciary system only to prolong the litigation intentionally. Therefore, considered the facts in totality, the accused was asked to cross-examine the witness, but he refused.” 7. From the aforementioned facts of case, and further considering that earlier also Dr. S.K. Bagh was not cross-examined by 5 applicant/accused and after closing of his right, application under Section 311 of Cr.P.C. for re-examination of said witness was moved which was dismissed against which the criminal revision was filed. This Court considering the grounds raised in that revision application and in larger interest to provide him the fullest opportunity to defend against the charges leveled against him allowed the criminal revision in part vide order dated 05.02.2018. It is also apparent that in compliance of order of this Court, Trial Court has issued summons for appearance of said two witnesses which was subject matter of the application filed under Section 311 of Cr.P.C. Learned Trial Court finding that one of the witness Dr. S.K. Bagh is not complying with the direction issued for his appearance for re-examination, also issued arrest warrant. Dr. S.K. Bagh appeared on 28.01.2019 under arrest warrant however, applicant again refused to cross- examine him and sought further time. It is no doubt that applicant/accused have to provide proper opportunity to defend the charges leveled against him. But however, at the same time, it is also to be considered that accused may not misuse the procedure of law. 8. From the contents of the order, the relevant dates as mentioned therein and further considering that earlier also the applicant has not cross- examined the witness Dr. S.K. Bagh against which application under Section 311 of Cr.P.C. was filed though dismissed by Learned Trial Court however, it is allowed by the High Court in CRR No. 933/2017 but even then on the date when S.K. Bagh one of the witness was produced before the Court under arrest warrant, again the applicant did not examined him. He even did not gave any heed to the advise of the 6 Court to engage a counsel to cross-examine the witness in appropriate manner or to take help of legal aid. 9. For the foregoing discussion, I do not find any good ground to interfere with the impugned order passed by Trial Court, accordingly, this criminal revision being sans merit is liable to be dismissed and is accordingly dismissed. Certified copy as per rules. sd/- (Parth Prateem Sahu) Judge alfiza