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2013 DIGILAW 1174 (RAJ)

Harish @ Shekhar v. State of Rajasthan

2013-07-04

R.S.CHAUHAN

body2013
JUDGMENT 1. - The petitioner is aggrieved by the order dated 18.2.2013 passed by the Additional District & Sessions Judge No. 3, Beawar (Ajmer) whereby the learned Judge has closed the right of cross-examination of the accused-petitioner. 2. The brief facts of the case are that on 28.10.2010, the complainant had lodged a FIR at Police Station Beawar Sadar, District Ajmer for offences under sections 363, 366, 376 IPC. On 18.2.2013, the case was listed for cross- examination of the prosecutrix. However, according to the petitioner, when his counsel came to the court he suddenly fell ill. Therefore, he moved an application seeking adjournment of the case and for further cross-examination of the prosecutrix. But the learned Judge dismissed the said application and closed the right of cross- examination. Hence, this petition before this court. 3. The learned counsel for the petitioner has vehemently contended that cross-examination is the only means available to an accused to challenge the veracity and trustworthiness of a witness. The right to cross- examination is an essential part of fair trial. Therefore, the learned Judge was not justified in closing the right of cross-examination. 4. Secondly, a bare perusal of the order dated 18.2.2013 itself would show that on many occasions, the testimony of the prosecutrix could not be recorded either due to non - sitting of the Presiding Officer, or due to the strike observed by the lawyers. Neither of these two situations have been caused by the accused-petitioner. Therefore, he cannot be blamed for not having cross-examined the prosecutrix on those dates. Another reason why the testimony of the prosecutrix could not be recorded by the trial court is that 2 the prosecutrixs family had suffered a tragedy- again a reason which could not be attributed to the petitioner. Yet on 18.2.2013, when adjournment was sought on the ground that the counsel for the petitioner was unwell, the said adjournment was denied by the learned trial court and the right to cross-examine was closed. Moreover, according to the learned counsel, the learned Judge has even noted the fact that the counsel comes from Ajmer, and is not a regularly practicing lawyer at Beawar. Yet a valuable right of the accused has been denied by the learned Judge. Hence, the prayer of the learned counsel that the impugned order needs to be interfered with. 5. Moreover, according to the learned counsel, the learned Judge has even noted the fact that the counsel comes from Ajmer, and is not a regularly practicing lawyer at Beawar. Yet a valuable right of the accused has been denied by the learned Judge. Hence, the prayer of the learned counsel that the impugned order needs to be interfered with. 5. On the other hand, the learned Public Prosecutor has contended that the case has been hanging fire since 2010. the case is for an offence committed against a woman. Therefore, it should be concluded as soon as possible. Repeatedly, the prosecutrix has appeared before the trial court and has left the court without getting her testimony recorded by the court. In case the prosecutrix is repeatedly asked to appear before the court, it may adversely affect the case of the prosecution. Keeping these factors in mind, the learned Judge was justified, in closing the right of cross-examination. Heard the learned counsel for the parties and perused the impugned order. 6. The right to a fair trial is not only part of the rule of law, but is also a fundamental right of an accused person under Article 21 of the Constitution of India. One of the elements of fair trial, is the right of the accused to cross-examine the witness. After all the veracity or trustworthiness of the witness is tested on the touchstone of the cross-examination. In the case of Mohd. Hussain @ Zulfikar Ali v. State (Government of NCT of Delhi), 2012(1) WLC (SC) Cri. 303 : (2012) 2 SCC 584 , the Apex Court has observed that "the fate of the criminal trial depends upon the truthfulness or otherwise of the witnesses and, therefore, it is of paramount importance. To arrive at the truth, its veracity should be judged and for that purpose cross-examination is an acid test. It tests the truthfulness of the statement made by a witness on oath in examination-in-chief. Its purpose is to elicit facts and materials to establish that the evidence of the witness is fit to be rejected". In the present case, it is the prosecutrix herself whose testimony was being recorded and who was to be subjected to a cross-examination. Therefore, the right of the petitioner to cross-examine her could not be curtailed briskly or denied mechanically. 7. In the present case, it is the prosecutrix herself whose testimony was being recorded and who was to be subjected to a cross-examination. Therefore, the right of the petitioner to cross-examine her could not be curtailed briskly or denied mechanically. 7. A bare perusal of the order dated 18.2.2013 reveals that on first three dates given for recording the testimony of the prosecutrix in 2011, the learned members of the Bar were on strike - a fact beyond the control of the accused petitioner. On 23.9.2011, her testimony could not be recorded due to paucity Of time - again a factor beyond the control of the petitioner. On 12.4.2012 and 17.5.2012, her testimony could not be recorded due to absence of the Presiding Officer-again a factor beyond the control of the petitioner. On 18.6.2012, .again the learned members of the Bar were on strike. Therefore, her testimony could not be recorded-again a factor beyond the control of the petitioner. On 20.12.2012, the accused submitted a Vakalatnama of his new counsel and sought adjournment which was given by the trial court. The next date in the case was fixed as 19.1.2013. However, on 19.1.2013, testimony of the prosecutrix could not be completed due to shortage of time-again a factor beyond the control of the petitioner. Even on the next date, her testimony could not be completed as her family suffered a tragedy - again a factor beyond the control of the petitioner. It is only on 18.2.2013 that the petitioner sought adjournment on the ground that his counsel is unwell. However, the impugned order was passed closing the right of the petitioner to cross-examine the prosecutrix. 8. It is unfortunate that the right of cross-examination has been closed and the reasons assigned are reasons which are absolutely beyond the control of the petitioner, it is rather unfortunate that the litigants are made to suffer due to repeated strikes observed by the learned member of the Bar, or due to non-availability of the judicial officers. But, unfortunately, that happens to be the reality of the judicial proceedings presently. But merely because the members of the Bar are on strike, or the Judicial Officers are unavailable, neither of these factors can be used as a means to deprive an accused of his fundamental right to cross-examine a witness. But, unfortunately, that happens to be the reality of the judicial proceedings presently. But merely because the members of the Bar are on strike, or the Judicial Officers are unavailable, neither of these factors can be used as a means to deprive an accused of his fundamental right to cross-examine a witness. In case such a right were to be denied on the basis of the reasons beyond the control of the accused, a substantial trial would turn into an illusionary one. But the courts of law would be reduced to a Kangaroo court, if such a practice were to b allowed. Such a practice would undermine the very concept of the rule of law. 9. For the reasons stated above, this court allows this petition, quashes and set asides the order dated 18.2.2013 and directs the learned Judge to permit the accused-petitioner to cross-examine the prosecutrix on the next date fixed by the court for the trial.The stay application is also disposed of.Petition Allowed. *******