Gaja Ram @ Gajiya @ Gajendra v. State of Rajasthan
2005-11-09
GOPAL KRISHAN VYAS
body2005
DigiLaw.ai
Judgment Gopal Krishan Vyas, J.-By way of filing the present miscellaneous petition under Section 482, CrPC, the petitioner has challenged order dated 24.03.2005 passed by the learned Addl. Sessions Judge (Fast Track), Balotra (Camp Barmer) in Sessions Case No. 55/2004. 2. The facts of the case indicate that the petitioner is facing trial for offence under Section 302, IPC. On 23.03.2005, statement of Raj Kumar Mehoto, PW .24 was recorded by the trial Court. During recording of statement of Raj Kumar Mehoto, PW .24, the accused moved application under Section 231 (2), CrPC. and made request that the cross-examination of witness Raj Kumar Mehoto, PW .24 may be deferred till the examination of prosecution witness Suresh Mehoto, so that the defence of the accused is not disclosed. The learned trial Court vide the impugned order rejected the prayer of the accused-petitioner. 3. It is contended by learned Counsel for the petitioner that the petitioner offered to bear the expenses of recalling the witnesses for cross-examination and, therefore, in view of the just and reasonable prayer made by the accused to protect his valuable right of defence, the trial Court ought to have allowed the application. The learned Counsel further submitted that the trial Courts observation that if such opportunity is granted to the accused then unnecessary delay will be caused is nothing but mechanical exercise of jurisdiction. 4. I have perused the language of Section 231, CrPC. The said section reads as under: -“231. Evidence for Prosecution.-(1) On the date so fixed, the Judge shall proceed to take all such evidence as may be produced in support of the prosecution. (2) The judge may, in his discretion, permit the cross-examination of any witness to be deferred until any other witness or witnesses have been examined or recall any witness for further cross-examination.” 5. From the language of the section, it is obvious that discretion vests in the trial Judge and the accused as of right cannot claim opportunity under Sub-section (2) of Section 231, CrPC However, such discretion is always exercised judiciously for the ends of substantial justice. It is, therefore, in the facts and circumstances of the case that the Judge concerned must judiciously apply his mind to an application moved under Section 231 (2), CrPC for granting opportunity of deferred cross-examination. 6.
It is, therefore, in the facts and circumstances of the case that the Judge concerned must judiciously apply his mind to an application moved under Section 231 (2), CrPC for granting opportunity of deferred cross-examination. 6. It must be borne in mind that right to defence is a valuable right of an accused before the Court and, whereas reasonable and sufficient caution is required to see that trial proceedings may not be hampered by strategum and tactics the Court must, at the same time, honour the right of the accused to defence to administer substantial justice. The insertion of Sub-section (2) in Section 231, CrPC manifestly shows that the Court has been clad with the power to grant such opportunity if sufficient and reasonable ground to grant such opportunity is made out. In the facts and circumstances of the present case, the accused moved application under Section 231 (2), CrPC praying that if prosecution witness Raj Kumar Mahoto is cross-examined before examining the witness Suresh Mahoto his defence will be disclosed. This prayer does not appear to be either a tactics or strategum. The prayer of the accused petitioner is genuine and meant to safeguard his defence. The witness Raj Kumar Mahoto, P.W. - 24 was examined on 24.03.2005. The petitioner has only made prayer that his cross-examination may be deferred till recording of the statement of prosecution witness Suresh Mahoto. In my opinion, the learned Judge has not exercised the discretion with application of mind. Reasonable and sufficient opportunity must be given to the accused to defend himself before the Court. It is an important aspect of the system of administration of justice and non-application of mind may result in miscarriage of justice. 7. For the foregoing reasons, the petition is allowed and order dated 24.03.2005 is quashed. The petitioners application under Section 231 (2), CrPC is accepted with cost to bear the expenses in recalling the witness Raj Kumar Mahoto, PW .24 for cross-examination. The trial Court is directed to call Raj Kumar Mahoto, PW .24 for cross-examination after recording statement of prosecution witness Suresh Mahoto.