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2015 DIGILAW 703 (RAJ)

Kamaldeep v. State of Rajasthan

2015-03-25

VIJAY BISHNOI

body2015
JUDGMENT 1. - This criminal misc. petition under Section 482 Cr.P.C. has been filed by the petitioner against the order dated 30.01.2015 passed by Additional Special Judge (Special Court of Women Atrocities and Dowry Cases), Sriganganagar (hereinafter referred to as 'the trial court') in Sessions Case No.19/2013 whereby the application filed by the petitioner under Section 311 Cr.P.C. for recalling the witnesses Kuldeep Singh (PW-7), Dr. Prem Bajaj (PW-8), Indraj (PW-9) and Sulochana (PW-10), whose statements were recorded on 19.11.2012 and 14.1.2015 respectively, has been dismissed. Earlier the trial court has closed the opportunity to cross-examine the above named witnesses on the respective dates when the statements of the above named prosecution witnesses were recorded. 2. The trial court while deciding the application under Section 311 Cr.P.C. has observed that despite giving opportunity to the counsel for the petitioner, he has refused to examine the above named witnesses and, therefore, no case for granting further opportunity is made out. It is also observed by the trial court that as per the directions issued by this Court as well as by the Hon'ble Supreme Court from time to time, strict compliance of provisions of Section 309 Cr.P.C. is required to be made. 3. Learned counsel for the petitioner has submitted that the cross-examination of above named witnesses has not been done by the Advocate of the petitioner before the trial court due to some unavoidable circumstances. It is contended that when the trial court has closed the opportunity of the petitioner to cross-examine the witnesses, immediately the counsel for the petitioner moved an application seeking opportunity to cross-examine the witnesses but the trial court has not allowed him to cross-examine the above witnesses. It is contended that for the purpose of proving his innocence, the petitioner is required to cross-examine the above named witnesses and if the said opportunity is not granted to the petitioner, he will be prejudiced. Learned counsel for the petitioner has also argued that the petitioner cannot be made to suffer for the mistake of the advocate and, therefore, one more opportunity may be granted to him to cross-examine the above named witnesses. It is also contended by learned counsel for the petitioner that he is ready to deposit cost of expenses of the witnesses and is also ready to pay a cost of Rs. 5,000/- to the complainant. 4. It is also contended by learned counsel for the petitioner that he is ready to deposit cost of expenses of the witnesses and is also ready to pay a cost of Rs. 5,000/- to the complainant. 4. Learned Public Prosecutor as well as counsel for the respondent No.2 have opposed the prayer of the counsel for the petitioner and argued that in the facts and circumstances of the case, the trial court has not committed any illegality in rejecting the application filed by the petitioner under Section 311 Cr.P.C. 5. Heard learned counsel for the parties and perused the impugned order. 6. When the counsel for the petitioner has failed to appear in the court in time and even one of the counsels has refused to cross-examine the prosecution witnesses, the trial court has rightly closed the opportunity of the petitioner to cross-examine the said witnesses. The trial court has specifically observed in the impugned order that if such kind of applications are accepted and witnesses are recalled for cross-examination, then the whole purpose of Section 309 Cr.P.C. would be frustrated. 7. It is true that when the witnesses are present in the Court, it is the duty of the counsel for the petitioner to cross-examine them and not ask to defer the cross-examination without there being any sufficient reason. It is noticed that in this case, the counsel for the petitioner before the trial court did not give any sufficient reason to defer the cross-examination of the witnesses and in such circumstances, this Court does not find any illegality in the impugned order passed by the court below. 8. However, it is also equally important that the accused has every right to prove his innocence and his right of cross-examining the prosecution witnesses is important right. In this case, it appears that the advocate engaged by the petitioner was not vigilant, rather in a casual manner he had asked for deferring the cross-examination of the witnesses and in that situation, the trial court has ordered for closing the opportunity of cross-examination of the witnesses. Generally a litigant cannot be punished for the fault of the advocate. 9. In the peculiar facts and circumstances of the case, this Court is of the opinion that a last opportunity to cross-examine the above witnesses can be granted to the petitioner provided he pays a cost of Rs. Generally a litigant cannot be punished for the fault of the advocate. 9. In the peculiar facts and circumstances of the case, this Court is of the opinion that a last opportunity to cross-examine the above witnesses can be granted to the petitioner provided he pays a cost of Rs. 5,000/- to the complainant and also bears the expenditures likely to be incurred in recalling the witnesses namely Kuldeep Singh (PW-7), Dr. Prem Bajaj (PW- 8), Indraj (PW-9) and Sulochana (PW-10). 10. Hence, in view of above discussions, this criminal misc. petition under Section 482 Cr.P.C. is allowed. The trial court is directed to recall the witnesses namely Kuldeep Singh (PW-7), Dr. Prem Bajaj (PW-8), Indraj (PW-9) and Sulochana (PW-10) on the condition that the petitioner will deposit a cost of Rs. 5,000/- to be paid to the complainant and also deposit cost of expenditure likely to be incurred in recalling the above named witnesses. The stay petition is also disposed of.Petition allowed. *******