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2013 DIGILAW 587 (RAJ)

Dalveer Singh v. State of Rajasthan

2013-03-18

R.S.CHAUHAN

body2013
ORDER The petitioner, Dalveer Singh, has challenged the order dated 19-5-2008 passed by the Judicial Magistrate (First Class), No. 15, Jaipur City, Jaipur, whereby the learned Magistrate has rejected the petitioner's application under Section 311 Cr.P.C. for recalling five witnesses for the purpose of cross-examination. The petitioner is also aggrieved by the order dated 19-7-2008 passed by the learned Session Judge, Jaipur City, Jaipur, whereby the learned Judge has rejected the revision petition filed by the petitioner on the ground of non-maintainability. 2. The brief facts of the case are that the petitioner was facing trial for an offence under Section 409 IPC. During the course of the trial, sixteen witnesses were examined by the learned trial Court. According to the petitioner, prosecution witnesses Nos. 1 to 5 are eye-witnesses of the alleged incident. While PW-1 Jai Singh was examined on 18-2-2005, PW-2 Mohan Singh, PW-3 Kaan Singh, PW-4 Madan were examined on 23-8-2005. PW-5 Amar Singh was examined on 20-2-2006. After sixteen witnesses were examined, the petitioner moved an application under Section 311 Cr.P.C. for recalling the prosecution witnesses Nos. 1 to 5 in order to cross-examine them. However, by order dated 19-5-2008, the learned Magistrate dismissed the said application. Since, the petitioner was aggrieved by the order dated 19-5-2008, he filed a revision petition before the learned Judge. But by order dated 19-7-2008, the learned Judge dismissed the revision petition on the ground mentioned above. Hence, this petition before this Court. 3. Mr. Ashish K. Singh, the learned counsel for the petitioner, has raised the following contentions before this Court :–– Firstly, that an accused has a fundamental right of a fair trial. Secondly, in order to vindicate himself, the accused has a right to cross-examine the prosecution witnesses. In the present case, it is imperative that PW-1 to PW-5 be recalled as they happen to be the eye-witnesses of the alleged offence. Thirdly, that even if a mistake were made by the counsel for the accused, the accused cannot be made to suffer the consequences of non-cross-examination of the witnesses. Fourthly, that power of recall of a witness, granted by Section 311 Cr.P.C., is a vast power, which should be invoked in order to ensure fairness of a trial. Thirdly, that even if a mistake were made by the counsel for the accused, the accused cannot be made to suffer the consequences of non-cross-examination of the witnesses. Fourthly, that power of recall of a witness, granted by Section 311 Cr.P.C., is a vast power, which should be invoked in order to ensure fairness of a trial. Relying on the case of P. Sanjeeva Rao v. The State of A.P., (2012) 7 SCC 56 : ( AIR 2012 SC 2242 ), the learned counsel has contended that even if there were an inordinate delay in filing an application under Section 311 Cr.P.C., even if there is prejudice being caused to the prosecution by recalling the prosecution witnesses, even then, the prosecution witnesses should have been recalled and should have been subjected to a cross-examination by the accused petitioner. 4. On the other hand, learned Public Prosecutor Mr. Peeyush Kumar has vehemently contended that firstly, the fault lies squarely on the shoulder of the counsel for the petitioner. For he failed to cross-examine the prosecution witnesses when they were produced in the Court. Secondly, the accused petitioner did not file his application for three long years. It is only at the tail-end of the trial, that the petitioner moved his application. Hence, it is a clever ploy to delay the trial. Thirdly, the power under Section 311 Cr.P.C. should not be invoked to permit the accused to plug in the gaping holes in his defence. Hence, the learned Public Prosecutor has supported the order dated 19-5-2008. Lastly, he has contended that the order dated 19-7-2008 is legally justified, as the petitioner had challenged an interlocutory order. But, Section 397(2) Cr.P.C. does not permit a revision petition to be filed against an interlocutory order. Thus, he has supported the order dated 19-7-2008. 5. Heard the learned counsel for the petitioner, and the learned Public Prosecutor for the State, and perused the impugned orders, and considered the case law cited at the Bar. 6. The entire criminal justice system is based on Constitution of India. Article 21 of the Constitution of India guarantees the right to life and personal liberty. Both life and personal liberty can be cribbed, cabined and confined only by procedure established by law. But even the procedure has to be a reasonable one. A fair trial is a constitutional guaranteed right of an accused. Article 21 of the Constitution of India guarantees the right to life and personal liberty. Both life and personal liberty can be cribbed, cabined and confined only by procedure established by law. But even the procedure has to be a reasonable one. A fair trial is a constitutional guaranteed right of an accused. Since, the accused is pitted against the colossal power of the State, the laws, ipso facto, tilt in favour of the accused. Until and unless, the accused is given an opportunity to cross-examine a witness, he would not be able to demolish the prosecution case. Therefore, the right to cross-examine a witness is a fundamental right of the accused; such a right cannot be brushed aside lightly by the trial Court. Even if a prejudice is being caused to the prosecution, even then, the fundamental right cannot be ignored. Further, repeatedly it has been held both by the Apex Court and by this Court that a mistake of a counsel should not prejudice the case of a litigant. 7. In the case of P. Sanjeeva Rao, AIR 2012 SC 2242 (supra), the Hon'ble Supreme Court has opined as under :–– "But merely because a mistake was committed, should not result in the accused suffering a penalty totally disproportionate to the gravity of the error committed by his lawyer. Denial of an opportunity to recall the witnesses for cross-examination would amount to condemning the Appellant without giving him the opportunity to challenge the correctness of the version and the credibility of the witnesses. It is trite that the credibility of witnesses whether in a civil or criminal case can be tested only when the testimony is put through the fire of cross-examination. Denial of an opportunity to do so will result in a serious miscarriage of justice in the present case keeping in view the serious consequences that will follow any such denial." It has further held as under :–– "We are conscious of the fact that recall of the witnesses is being directed nearly four years after they were examined-in-chief about an incident that is nearly seven years old. Delay takes a heavy toll on the human memory apart from breeding cynicism about the efficacy of the judicial system to decide cases within a reasonably foreseeable time period. To that extent the apprehension expressed by Mr. Delay takes a heavy toll on the human memory apart from breeding cynicism about the efficacy of the judicial system to decide cases within a reasonably foreseeable time period. To that extent the apprehension expressed by Mr. Rawal, that the prosecution may suffer prejudice on account of a belated recall, may not be wholly without any basis. Having said that, we are of the opinion that on a parity of reasoning and looking to the consequences of denial of opportunity to cross-examine the witnesses, we would prefer to err in favour of the Appellant getting an opportunity rather than protecting the prosecution against a possible prejudice at his cost. Fairness of the trial is a virtue that is sacrosanct in our judicial system and no price is too heavy to protect that virtue. A possible prejudice to prosecution is not even a price, leave alone one that would justify denial of a fair opportunity to the accused to defend himself." 8. Merely because the petitioner had moved his application three years after the PW-1 to PW-5 were examined as witnesses, merely because it may cause prejudice to the prosecution, even then the right of cross-examination cannot be denied to the petitioner. Therefore, the order dated 19-5-2008 is clearly untenable. 9. As far as the order dated 19-7-2008 is concerned, the learned Judge is certainly justified in concluding that a revision petition does not lie against an interlocutory order. Obviously, the order dated 19-5-2008 is an interlocutory one. Hence, the learned Judge was certainly justified in dismissing the revision petition on the ground of non-maintainability. 10. For the reasons stated above, the order dated 19-5-2008 is quashed; the learned trial Court is directed to recall the PW-1 to PW-5 and to give an opportunity to the petitioner to cross-examine them. However, the petitioner is not permitted to use the right to cross-examine PW-1 to PW-5 as an excuse to prolong the trial. This Court, however, upholds the order dated 19-7-2008, as the revision petition was not maintainable before the learned Judge. 11. Accordingly, the petition is partly allowed. Petition partly allowed.