Research › Search › Judgment

Rajasthan High Court · body

2005 DIGILAW 3073 (RAJ)

RAM SWAROOP VISHNOI v. STATE OF Rajasthan

2005-11-21

GOPAL KRISHAN VYAS

body2005
Judgment ( 1 ) BOTH these petitions are filed by the petitioner under Section 482, Cr. P. C. challenging order dated 5-9-2005 (in S. B. Criminal Misc. Petition No. 1223/2005)whereby the trial Court has framed charge against the petitioner for offence under Section 3/25, Arms Act and order dated 11-7-2005 (in S. B. Criminal Misc. Petition No. 1224/2005) whereby the trial Court rejected the petitioners application moved under section 311, Cr. P. C. for recalling witness jaipal, P. W. 6 for cross-examination. Both the impugned orders are passed in Sessions case No. 2/2005, arising out of C/r. No. 412/2004, P. S. Raisinghnagar registered for offence under Section 341/302, I. P. C. The decision on S. B. Criminal Misc. Petition No. 1224/2005 will dispose of both these petitions and, therefore, I gather the facts from petition No. 1224/2005. ( 2 ) THE facts of the case indicate that the case was fixed before the trial Court on 25-4-2005 for prosecution evidence and, on that day, Shri Devendra Singh Ramana, advocate filed vakalatnama of the petitioner. On that date, the prosecution examined its witness Jaipal, P. W. 6 and the witness was also cross-examined by the counsel for the accused petitioner who was representing the accused prior to filing of vakalatnama by shri Devendra Singh, Advocate. On June 1, 2005, application was filed by petitioners counsel Shri Devendra Singh under Section 311, Cr. P. C. stating that he was engaged on 25-4-2005 itself on which date statement of prosecution witness Jaipal, P. W.-6 was recorded and he was not in a position to go through the record of the case by that date, therefore, the witness Jaipal, P. W.-6 may be recalled for cross-examination by him. The trial Court rejected the application by the impugned order dated 11-7-2005. The trial court observed that the accused was being represented by his counsel and merely on account of filing vakalatnama by another counsel no right accrues for recalling the witness. The trial Court expressed doubt over the application and observed that it is not clear what cross-examination remained to be made. ( 3 ) ADVERTING to S. B. Criminal Misc. The trial court observed that the accused was being represented by his counsel and merely on account of filing vakalatnama by another counsel no right accrues for recalling the witness. The trial Court expressed doubt over the application and observed that it is not clear what cross-examination remained to be made. ( 3 ) ADVERTING to S. B. Criminal Misc. Petition No. 1223/2005, learned counsel for the petitioner submitted that earlier challan was filed against the petitioner for offence under Section 341/302, I. P. C. but, subsequently, the police also filed challan against the petitioner for offence under Section 3/25, Arms Act on the ground that sanction was accorded later on. The genesis of controversy is that by order dated 5-9-2005 the trial Court ordered recall of the prosecution witnesses Bhaga, P. W.-3 and jaipal, P. W.-6 to provide opportunity to the prosecution to prove its case though confining the recall of the witness to prove charge against the accused-petitioner for offence under Section 3/25, Arms Act. ( 4 ) COUNSEL for the petitioner contended that it sounds ill at law in the mouth of the trial Court that it ordered the witnesses to be recalled granting opportunity to the prosecution to prove its case whereas the petitioners application in the same trial moved under Section 311, Cr. P. C. for recalling that very witness for cross-examination has been rejected. It is vehemently argued that while providing opportunity to the prosecution the Court below had no inconvenience in allowing the petitioners prayer for recalling the same witness for cross-examination by the petitioners counsel. Mr. Kumbhat argued that valuable right of the petitioner to defence is at stake and the petitioners counsel before the trial Court conscientiously moved application for cross-examination of the witness Jaipal, P. W. 6 by recalling him and, therefore, while the trial Court, in its wisdom, ordered the witnesses to be recalled granting opportunity to the prosecution to the extent of charge against the petitioner for offence under Section 3/25, Arms Act it was a prejudicial approach nelating opportunity to the defence to cross-examine the same witness though the counsel had mentioned cogent reasons for the necessity to recall the witness and cross-examine him. Learned counsel for the petitioner stressed that the Court should have taken a liberal view in the interest of justice. Learned counsel for the petitioner stressed that the Court should have taken a liberal view in the interest of justice. He cited before me judgments in the case of Hoffman Andreas v. Inspector of customs, Amritsar, reported in 2000 (4)Crimes 228 (SC) and in the case of Rajendra prasad v. The Narcotic Cell through its Officer-in-charge, Delhi, reported in 1999 Cr. L. R. (SC) 434 : (1999 Cri LJ 3529 ). ( 5 ) LEARNED counsel for the non-petitioner has forcefully opposed the petitioner under section 482, Cr. P. C. stating that prosecution witness Jaipal, PW-6 had already been cross-examined by the counsel representing the accused prior to filing of vakalatnama by Shri Devendra Singh, Advocate and only because the counsel was changed in the mid of the trial it does not entitle the accused to recall the witness for cross-examination by the another counsel who is now representing him. He contended that this is nothing but tactics and stratagem and the Court below rightly rejected the petitioners application for recalling the witness. Counsel for the non-petitioner further contended that Courts orders are revisable and a petition under Section 482, Cr. P. C. would not be maintainable. He also submitted that in the second petition the petitioner has objected to order dated 5-9-2005 which is only confined to offence under Section 3/25, Arms Act and, till subsistence of order dated 11-7-2005, there is no ground for interference in the order dated 5-9-2005. ( 6 ) I have carefully gone through the impugned order dated 11-7-2005. Isolated from the facts and circumstances of the present case, I would not be averse to the conclusion drawn by the Court below; but, at the same time, I find the conclusion drawn by the trial Court on the petitioners application is drawn so on the anvil of subjectivity. Fair play does not yield to tilted inclinations and more so where defence of the accused is at stake. From the facts of the case, obviously when the witnesses are recalled for examination by the prosecution if an advantage is gained by the accused for cross-examining the same witness for some cogent reason, such advantage to the defence only goes to further the interests of fair play in a judicial trial. The Court has plenary powers and exercise of these powers with predetermined notions fouls administration of criminal justice. The Court has plenary powers and exercise of these powers with predetermined notions fouls administration of criminal justice. I do not rush to find fault with the order of the trial Court but, in the facts and circumstances of the case, the trial court was not justified in proceeding with varying yardsticks. In the circumstances of the case, in the event an advantage accrues on its own to the accused for his defence, it is not at all any legal necessity to whittle down the advantage so accruing to the defence. In the case on hand, the prosecution itself has brought up challan against the accused before the Court piecemeal and, in that way, the Court promptly rushed to recall the witnesses to aid prosecution. At an entry stage in the trial, in such circumstances, if recalled witness is sought to be cross-examined by the defence for cogent reason, the Court has nothing to hesitate for granting the prayer. ( 7 ) I have also gone through the judgments cited by learned counsel for the petitioner. Though the facts and circumstances in those cases are different but the underlying principle is obvious and supports the view taken hereinabove. It is always in the interest of justice that things are clear before the Court and, therefore, at no stage fore-closure from seeking to make good an error or omission is envisaged. The very purpose of enacting the provisions of Section 311, Cr. P. C. is aimed at accomplishment of substantial justice in a trial by conferring upon the Court the power to recall and re-examine any witness at any stage of the trial. ( 8 ) IT is true that the impugned orders are revisable but, at the same time, there is no bar to invoke jurisdiction of this Court under Section 482, Cr. P. C. I have already noted above that bereft from the facts and circumstances of the case I should not have been averse to the trial Courts order dated 11-7-2005 and, therefore, where it is expedient in the interest of justice, the choice is always open to the party litigating whether in the facts and circumstances of the case the order impugned should be sought to be revised or should it be sought to be set aside or superseded in exercise of jurisdiction under Section 482, Cr. P. C. ( 9 ) FOR aforestated reasons, the order dated 11-7-2005 is set aside and order dated 5-9-2005 is modified to the extent that opportunity of cross-examination of prosecution witness Jaipal, P. W.-6 shall be given to the counsel for the petitioner as prayed by him in his application dated 1-6-2005. It is made clear that petitioner can cross-examine Jaipal, P. W. 6 to the extent of involvement of petitioner himself and such opportunity shall not be restricted to offence under Section 3/25, Arms Act only. ( 10 ) ACCORDINGLY, both the petitioners stand disposed of. Order accordingly.