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2005 DIGILAW 1007 (RAJ)

Rameshwar Lal Modi v. State of Rajasthan

2005-04-05

K.C.SHARMA

body2005
Judgment K.C. Sharma, J.-The petitioner is facing trial in Sessions Case No. 33/2002 pending before the learned Special Judge, NDPS Cases, Jaipur. On 03.03.2005, the petitioner filed an application under Section 311, CrPC mentioning therein that for the reasons mentioned in the application witnesses Mahendra Kumar, Shahjad Ali and Munshi Lal could not be cross-examined and thus, the trial Court was requested to recall the above named three witnesses. The learned trial Court vide order dated 05.03.2005 has rejected the application. Being aggrieved of this order of the trial Court, the petitioner has approached this Court by filling the present petition under Section 482, CrPC. 2. After hearing learned Counsel for the parties I have gone through the impugned order. 3. Perusal of the order-sheets dated 012.2004, 112.2004 and 19.02.2005 reveal that on these dates, examination-in-chief of PW-10 Mahendra Kumar Saini, Shahzad Ali and Munshi Lal was recorded but due to absence of Counsel for accused petitioners, they could not be cross-examined. Even on 012.2004 and 05.01.2005 Counsel for the accused petitioners remain absent from the Court. Therefore, it is evident that for one reason or the other, Counsel for the accused petitioners did not appear in the Court to cross-examine the witness present in the Court. 4. It is well settled proposition of law that the accused has a right to cross-examine the witnesses to elicit the suppressed facts and to expose the discrepancies. The object of cross-examination is to impeach the credibility and the general value of the evidence given by the witnesses. The right to cross-examination is one of the valuable rights of the accused in order to elicit the truth from the witnesses. Though the accused has no right to seek postponement of the cross-examination and the cross-examination should follow the examination-in-chief , but in certain cases, where either Counsel for the accused is not available on account of some unforeseen reason/event or the defence Counsel is not prepared with cross examining the witnesses when the examination-in-chief is over, then in such a case the trial Court, in its discretion, may permit the cross-examination of any such witness to be deferred until any witness is examined or re-called for cross-examination. The object of cross-examination is to enable the Court to arrive at the truth, irrespective of the fact whether the prosecution or the defence has examined the witnesses or failed to produce some evidence or due to unavoidable circumstances the accused failed to cross-examine the witnesses. The evidence is taken neither to help the prosecution nor for the defence but the same is taken for a just and proper disposal of the case. 5. Be that as it may, when for the reasons mentioned above, if the petitioner failed to cross-examine the witnesses, I am of the view that in the interest of justice the petitioner should be given one opportunity to cross-examine the above named three witnesses. However, learned Counsel for the accused petitioners is expected to cross-examine the witnesses on the very day on which the witnesses present themselves in the Court for cross-examination. 6. In the result, this petition of the petitioner is allowed. The order of the learned trial Court dated 05.03.2005 is set aside and the learned trial Court is directed to recall the above named three witnesses and permit the petitioner to cross-examine them and the Counsel for the accused petitioners shall cross-examine the witnesses on the very day on which they present themselves in the Court for their cross-examination.