Order 3

Order Details: Order
Pdf Text: 1 CC No.1890/SS/2018
Exh.40
ORDER BELOW EXH.40
This is an application filed by accused for recalling of
C.W.1 for further cross-examination.
2. In short, the contention of the accused is that though
this matter is posted for final arguments, the trial is yet not
concluded. On previous date the C.W.1 was cross-examined by him
through his advocate. Thereafter, he has engaged a new advocate.
After perusal of the record by his current advocate, it was
transpired that the cross-examination of C.W.1 has not been
conducted on certain crucial aspects. Due to inadvertence of his
previous advocate, the cross-examination of C.W.1 is not conducted
properly. Accordingly, by contending that for the just adjudication
of the matter, it is essential for him to further cross-examine the
C.W.1, prayed for allowing the application.
3. The complainant has resisted the application and
contended that the matter is posted for final arguments and he is
ready to argue the matter.
4. Heard both sides. Perused record.
5. Perusal of record shows that the complaint is filed in
the year 2018. Thereafter, the process came to be issued against
accused on 19/04/2018. It is also significant to note that the
complainant has filed his affidavit of examination-in-chief at
Exh.26 on 13/12/2023. Even the admissibility of documents came
to be adjudicated on 30/01/2025. Further perusal of record shows
that the plea of accused came to be recorded on 23/03/2023.
Thereafter, the accused was required to be brought before this
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2 CC No.1890/SS/2018
Exh.40
Court by executing non-bailable warrant. Thereafter, from time to
time again non-bailable warrants came to be issued against the
accused. Even the proclamation under Section 82 of the Code of
Criminal Procedure was also required to be issued against the
accused. In the meantime, on 21/02/2025 no-cross examination
order was required to be passed against the accused. Lastly, the
accused appeared on 27/04/2026 when his statement under
Section 313 of Code of Criminal Procedure came to be recorded.
Thereafter, on 12/06/2026 order below Exh.1 came to be passed
and thereby the defence evidence of the accused came to be closed.
Only thereafter, the accused filed an application at Exh.36 seeking
recalling of C.W.1 for cross-examination. Considering the interest
of justice, that application came to be allowed by imposing costs
and with direction to conduct the cross-examination of C.W.1.
Accordingly, on 21/08/2026 the accused has cross-examined the
complainant through his advocate. After completion of cross-
examination, by virtue of pursis at Exh.38, the complainant closed
his evidence. Thereafter, the matter came to be posted for final
arguments.
6. Apart from above stated conduct of the accused
appearing from record, in this entire application, the accused has
not given any single reason for reopening of or conducting further
cross-examination of the complainant. Merely it is contended that
his previous advocate has inadvertently not conducted proper
cross-examination. However, this contention of the accused is
totally false and against the record of this matter. As stated above,
the record itself categorically shows that the complainant has been
cross-examined by accused through his advocate.
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Exh.40
7. In such circumstances, it was obligatory on the part of
accused to explain as to why the reopening of or conducting
further cross-examination of complainant is essential. However, as
stated above, except mere vague contentions, nothing has been
uttered by the accused in this application. As the record itself
categorically shows that complete opportunity of cross-examining
the complainant was given to the accused, the reopening of or
conducting further cross-examination cannot be permitted to fill up
the lacuna. More so, change of advocate by the accused also
cannot be termed as a ground for reopening of or conducting
further cross-examination. As such, it becomes crystal clear that on
any count the application is not maintainable and liable to be
rejected. Hence, following order :
ORDER
Application stands rejected.
(D. P. Kasat)
Judicial Magistrate First Class,
Date : 09/09/2026 63rd Court, Andheri, Mumbai.
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