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2016 DIGILAW 16 (ALL)

RAHUL v. STATE OF U. P.

2016-01-05

KARUNA NAND BAJPAYEE

body2016
JUDGMENT Hon’ble Karuna Nand Bajpayee, J.—The application under Section 482 Cr.P.C. has been filed for setting aside the order dated 16.12.2015 passed by the Sessions Judge, Meerut by which the Application No. 47 Kha, under Section 311 Cr.P.C. has been rejected by the Court below denying the opportunity to the applicants to cross-examine P.W.11 Meenu. 2. Heard applicants’ counsel as well as learned AGA and perused the record. 3. Submission of counsel for the applicants is that PW-11 Meenu has been examined in-chief but as the counsel who was conducting the trial has returned the brief therefore, the applicants (accused) had to engage another counsel for the cross-examination of the witnesses. It was further pointed out that though the examination-in-chief was done on 8.12.2015 but when the adjournment was sought on that date because of the inability of the counsel to continue the trial, another date 10.12.2015 was fixed for the cross-examination immediately after two days. Further submission is that this period of adjournment was very short. As it was a murder trial the rights and liability of the applicants, who were facing the trial as accused, must be adjudicated upon after the witnesses were cross-examined. Otherwise it is bound to cast serious deleterious/prejudicial effect against the interest of the applicants and would go to the extent of infringing upon the fairness of the trial. But on the next date i.e. 10.12.2015 when adjournment was again sought the Court refused to grant the same and closed the evidence. It was also submitted that it is not a case or a matter in which the repeated adjournments might have been sought on behalf of the applicants for cross-examination nor is it a case in which the counsel can be said to have deliberately resorted to any delaying tactics and was under any false pretext or pretence indulging in any such exercise which may be said to be unfair or deliberate. In fact, the witness could be procured for cross-examination only after enormous efforts were done by the trial Court in that regard and she could be brought to be examined as PW-11 after ten prosecution witnesses had already been examined. In fact, the witness could be procured for cross-examination only after enormous efforts were done by the trial Court in that regard and she could be brought to be examined as PW-11 after ten prosecution witnesses had already been examined. The emphasis was laid by counsel who tried to elaborate and demonstrate that the facts and circumstances of the case are such that the applicants cannot be accused of any such delaying tactics which could have justly impelled the Court to close the evidence and deprive the accused from their most valuable right of cross-examination. Counsel for the applicant has tried to show that the adjournment was sought in a bona fide manner because the counsel himself had refused to continue conducting the trial itself. It was in that background that another counsel had got to be engaged. Submission is that in fact even if a new counsel could have been engaged within two days then also it would have been an insufficient period of time for a new counsel to prepare the case and to do justice with the trial of murder. Further submission is that in fact whether the accused applicants withdrew their instructions from the counsel or the counsel himself refused to continue with the trial is not of much significance in the facts and circumstances of the case and in any view of the matter, if a new counsel had to be engaged, a sufficient opportunity should have been provided to the accused to do justice with their cause. It was further submitted that the applicants have absolutely no intention to delay the proceedings of the trial or to prolong the matter and if an opportunity shall be given to them to cross-examine the witness, it shall be availed on the first date and no further adjournment shall be sought by them. It was next submitted that if the PW-11 Meenu goes uncross-examined, the prejudicial effect cast on the rights of the applicants shall result in complete miscarriage of justice and principles of natural justice and principles of equity and constitutional right to have a fair trial, all shall stand defeated. The contention is that the accused ought to be granted a reasonable opportunity to cross-examine the witness which has already been denied to them by closing the evidence after recording the examination-in-chief of the witness. 4. The contention is that the accused ought to be granted a reasonable opportunity to cross-examine the witness which has already been denied to them by closing the evidence after recording the examination-in-chief of the witness. 4. Ordinarily this Court would have proceeded with the matter after issuing notice to the opposite party No. 2 but in that situation the proceedings of the trial had to be stayed. In the wake of heavy pendency of the cases, there is hardly any likelihood for this matter to be taken up in any near future. Such a course would be very detrimental to the interests of the prosecution. In such a situation, when the facts and circumstances of the case also appear to be of such nature that the Court feels that the matter may be disposed off on the basis of record taking the assistance of learned A.G.A., the Court deems it fit to proceed with the matter and pass order after hearing the learned A.G.A. and counsel for the applicants. The Court has preferred to adopt this course more so because the hub of the controversy involves nothing except the appreciation of the wider principles of fairness or to say the first principles of justice. 5. It appears that PW-11 Smt. Meenu was not making herself available in the Court because she apprehended danger to her life and it was only after making enormous efforts that the trial Court could ensure her presence for the purpose of cross-examination in the Court. The difficulty in procuring her attendance and the delay caused because of her non examination seems to have cast significant effect on the mind of the trial Court and for prompting it to close the evidence as the Court for obvious reasons did not want to take any chance to let the witness slip again during the trial. It also appears that the additional reason to take a strict view in the matter was that there was a direction of High Court to expedite the proceedings of the trial. Apparently the order passed by the Court below is such which cannot be very seriously assailed on the ground of any illegality or impropriety and the view taken by the Court below can also not be castigated for being perverse. Apparently the order passed by the Court below is such which cannot be very seriously assailed on the ground of any illegality or impropriety and the view taken by the Court below can also not be castigated for being perverse. But despite this fact, when this Court takes an over all broader view of the matter and keeps in perspective the imperative concept of fair trial, in the view of the Court it appears necessary that the trial should be finally decided and adjudicated upon, not on the basis of untested testimony of the witnesses, but after their testimonies have been tested on the anvil of cross-examination. Such a course would not only enable the Court to evaluate the evidenciary value and its worth more adequately but there shall also not be left any chance for either of the parties to assail the final verdict of the trial Court on the ground that the judgment was based on unscrutinized testimonies which were never vetted on the touchstone of cross-examination. Off course, it goes without saying that whenever the Court feels that the adjournment sought by a party is not based on reasonable grounds or is actually having an oblique motive behind the same to delay the trial or to otherwise defeat the ends of justice, it is very much within the powers of the Court not to grant the adjournment and close the evidence. But the present matter does not display any such circumstances on the basis of which this Court may come to the conclusion that the adjournment was sought for any of such reasons. The first date on which the witness was available was 8.12.2015 and the next date was fixed as 10.12.2015. It also does not appear to be a disputed fact that the counsel who had been conducting the trial was no more counsel in the case because of his own refusal or because of the withdrawal of the instructions by the applicants. In such a situation, the opportunity of two days time to engage the new counsel to cross-examine the witness and conduct the trial does not appear to be an adequate opportunity. It cannot be said with any justification that in such a short time even if a new counsel was engaged he could have prepared the case and do justice with the trial of murder. It cannot be said with any justification that in such a short time even if a new counsel was engaged he could have prepared the case and do justice with the trial of murder. In such circumstances, in order to arrive at the ends of justice and in order to meet and fulfill the vital requirements of equity and in order to ensure a fair trial, this Court feels inclined to direct that the trial Court should fix some date and call the aforesaid witness to be cross-examined by the accused. 6. It may be observed that whenever the witness appears in the Court to be cross-examined, no adjournment shall be sought on behalf of any of the accused and cross-examination will be done on that very date. If at all any adjournment is sought by accused, the Court shall be at liberty to close the evidence and proceed with the trial in accordance with law. 7. In view of the above, the impugned order dated 16.12.2015 stands set aside. The Court below is required to take steps in order to get the witness cross-examined in the light of the directions made in this order. 8. The application stands allowed. 9. A copy of this order be certified to the lower Court forthwith.