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2010 DIGILAW 2389 (ALL)

PHOOL CHANDRA DUBEY v. STATE OF U. P.

2010-08-09

S.C.AGARWAL

body2010
JUDGMENT Hon’ble S.C. Agarwal, J.—Heard Sri Manish Tewari, learned counsel for the revisionist and learned AGA for the State. It is not necessary to issue notice to opposite party Nos. 2 to 7. 2. The instant revision is preferred against the order dated 25.5.2010 passed by the A.S.J., Court No. 1, Bhadohi Gyanpur, District- Sant Ravi Das Nagar in S.T. No. 22 of 1999 (State v. Vijay Shanker and others), under Sections 302, 201, 147, 149, 120B IPC, P.S. Aurai whereby the trial Court refused to record the remaining evidence of revisionist Phool Chandra Dubey (P.W.-1). 3. The facts as contained in the impugned order are that the revisionist is the complainant in the Sessions Trial. His examination-in-chief was recorded on 30.8.2005 but on subsequent dates he did not appear for cross-examination. On 24.11.2005, his cross-examination was closed as he did not appear and other witnesses were examined. On 26.4.2010 an application 296 Kha was moved by the revisionist-complainant before the trial Court that his statement be recorded for just decision of the case. The application was opposed by learned counsel for the accused on the ground that the High Court in Criminal Revision No. 1194 of 2010 filed by Phool Chandra Dubey, complainant, set aside the order passed by the Sessions Court dated 27.2.2010 closing the prosecution evidence and directed one more opportunity be given to the revisionist to lead its remaining evidence. The objection is that in pursuance of the order passed by the High Court, opportunity was given on 17.4.2010 and there is no occasion for re-examination of P.W.-1. 4. The application 296 Kha was rejected by learned Sessions Judge on the ground that in earlier revision, order dated 27.2.2006 was challenged by the complainant before the High Court but order closing statement of P.W.-1 was never challenged. 5. The contention of learned counsel for the revisionist is that examination-in-chief of P.W.-1- the complainant has already been recorded by the Court but he was not cross-examined by the defence as he did not appear on subsequent dates. The trial Court closed his cross-examination. It was contended that P.W.-1 is offering himself for cross-examination and not for re-examination. It is in the interest of justice that accused persons cross-examine P.W.-1 and accused persons have no right to decline the opportunity of cross-examination. The trial Court closed his cross-examination. It was contended that P.W.-1 is offering himself for cross-examination and not for re-examination. It is in the interest of justice that accused persons cross-examine P.W.-1 and accused persons have no right to decline the opportunity of cross-examination. Learned counsel further submitted that it was a duty of the trial Court to permit P.W.-1 to be cross-examined by the defence as in the absence of cross-examination, the defence would claim that the statement of P.W.-1 be not read against them as he was not cross-examined and defence did not get an opportunity to cross-examine P.W.-1. 6. The other contention is that if P.W.-1 did not appear for cross-examination after he was examined in chief, his statement could not be closed by the trial Court. Trial Court was duty bound to issue coercive process against P.W.-1 to ensure his presence before the Court for the purpose of cross-examination and the statement of the witness cannot be closed on the ground that he is not attending the Court for cross-examination. 7. I find sufficient force in the contention raised by the learned counsel for the revisionist. Once a witness has been examined in chief, it is duty of the Court to ensure that he is cross-examined by the defence. The defence must be provided an opportunity and cross-examine the witness. If the witness is not present in the Court, efforts must be made to ensure his presence, so that, defence may not be prejudiced. Here the case is reverse. Though earlier P.W.-1 did not appear for cross-examination, now he is ready to appear for cross-examination and defence is objecting to it. The trial Court also did not consider its duty to permit cross-examination of P.W.-1 by defence counsel. The reasons appear to be obvious. The defence does not wish to cross-examine the witness and is objecting to the cross-examination on the ground that the evidence of P.W.-1 has been closed but would claim during arguments that the statement of P.W.-1 is not admissible against the accused as opportunity for cross-examination was not provided to the defence to cross-examine P.W.-1. Such a course of action could not be permitted. When the witness is ready to be cross-examined, the trial Court is bound to provide opportunity to the defence to cross-examine him. Such a course of action could not be permitted. When the witness is ready to be cross-examined, the trial Court is bound to provide opportunity to the defence to cross-examine him. If the defence refuses to cross-examine P.W.-1, then it cannot claim subsequently that the defence was not provided an opportunity for cross-examination, but the Court cannot refuse to permit cross-examine of P.W.-1. 8. In these circumstances, the impugned order dated 25.5.2010 cannot be sustained and is quashed. The revision is allowed. The learned trial Court is directed to permit cross-examination of P.W.-1 by counsel for the accused on production of certified copy of this order by the complainant. The Court shall fix a date for cross-examination of P.W.-1 and the complainant is directed to be present on that date for cross-examination and he shall be cross-examined by learned counsel for the accused. If on the date fixed for cross-examination, the revisionist is not present before the trial Court, the trial Court shall be at liberty to issue coercive process against him to ensure his presence. —————