R.SHAH (OFFICE STAFF) 03 December 2012

Chief of pw2 after 2 years of closing evidence of pw2

Hello experts,

i m accused in 498a case, whereupon the PW2 chief examination partly recorded and thereafter this pw2 not interested / willing to continue his chief deposition and for cross examination. since his evidence start in March 2009 till Dec'2010 (i.e. 20 months-30 hearing dates) in that he was absent for 18 dates and present for 12 dates and in 12 dates he was escaping of giving his evidence before court by one and other reason. Court observe his conduct andf taken all steps re-summons, BW,NBW, impose fine upon him of Rs.1000/- for not giving evidence and giving false excuses etc.. to comply him to give evidence. after all this efforts and district court direction the hon'ble JMFC court again given 2 dates chance to him to come and deposed but he didn't. Finally the court closed his evidence on Dec'2010 with reasioning order and prosection not object.

After this medical officer examine on sep'2012, thereafter the complainant/informant urge that pw2(father of complainant/informant) willing to give and complete his evidence, hence his evidence be recorded. This Pw2 after 2 years want to complete his chief examination when defence has exposed out all there falsehood. this PW2 with prepared/dictate mind want to come in court to give evidence after 2years and when his evidence closed they have not objected nor file appeal against the order of his evidence closed to higher court. the Complainat/informant want to prolong the matter as this case is 7 year old now. i presume that this PW2 want to deposed and then escape from cross examiantion and we will keep call him and court will keep summoing him or he will get excuses of illness/sr. citizens.

Queries,

1. whether under above circumstance it's permissible that PW2 chief examination will be allowed by court and proper after 2years of his close evidence.

2. is this not the abuse of process of all of sec. 311crpc .

3. How i should stop his evidence, next date was given for his examination. any judgment i assume that this is unique case uptill now. but your precious advise would save me from further harrasment.

4. what application i should file before jmfc court to review the rozanama and his conduct before preious judge .

kindly help me in this regard, i need your experts guideince. response as early as possible.

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1 Replies

Saurabh..V (Law Consultant) 03 December 2012

@R. Shah

This is certainly abuse of provisions of laws. You can firstly oppose his move by a simple application stating the facts of his conduct and closure of his evidence by the certified copy of the earlier order.

However I feel that till P.E. is not closed fully, any of the witness can be recalled for examination or chief etc. Still, seeing his pervious conduct it is apparent that he is only trying to put halt to the proceedings and allowing his further examination would defeat the very purpose of a judicial proceedings and it would amount to violation of your fundamental rights guaranteed under Consitution.

Hence in my view, although you may have to move High Court for this matter but still you first move an application before your present judge. If you file an application or not, the maximum damage would be that the judge may still allow PW2 to depose and restart his statements. So take the chance and file a simple application.

I think you advocate could easily oppose recording of his statement as per "Limitations Act". All the best!

//peace

/Saurabh..V