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2016 DIGILAW 215 (RAJ)

Lokesh Kumar v. State of Rajasthan

2016-02-04

BANWARI LAL SHARMA

body2016
JUDGMENT : Banwari Lal Sharma, J. Petitioners Lokesh Kumar, Tulsi Ram and Smt. Durga Devi have preferred this misc. petition u/S. 482 Cr.P.C. with prayer to quash and set the impugned order dated 09.06.2015 (Annexure-6) and allow the application filed by the petitioners on 02.07.2014 (Annexure-4) and the trial court may be directed to issue summon to PW-1 Sunita for her cross-examination. 2. The brief facts of the case are that a trial for offence u/Ss. 498A and 406 IPC is pending against the petitioners before the learned Chief Judicial Magistrate, Sikar since 2011 wherein on 07.11.2012 PW-1 Sunita complainant victim was examined during trial. After recording examination-in-chief of this witness, opportunity of cross examination was given to the petitioners accused and their counsel which was refused by the petitioners stating that they have filed revision petition in the matter, therefore, cross examination was closed on the same day i.e. 07.11.2012. Thereafter on 2.7.2014 petitioners moved an application u/S. 311 Cr.P.C. before the learned trial court and prayed for recalling PW-1 Sunita for cross examination which was dismissed by the impugned order dated 09.06.2015 by the learned trial court. 3. Aggrieved by the said order, petitioners moved this misc. petition. 4. Mr. K.K. Mathur, learned counsel for the petitioners submits that since revision petition was pending on 07.11.2012, therefore, learned counsel for the petitioners refused to cross examine the witness PW-1 Sunita but after deciding of the revision petition, petitioners moved an application for cross examination. He submits that cross-examination from prosecution witness is valuable right of accused persons and dismissal of application amounts to denial for the fair trial, therefore, the impugned order may be quashed and set aside and this misc. petition may be allowed. 5. Learned counsel relied on Natasha Singh v. CBI (State) Criminal Appeal No. 709/2013 decided on 08.05.2013 by the Hon’ble Supreme Court. 6. Per contra, learned counsel for the respondent no. 2 complainant Mr. Anoop Dhand supported the impugned order and submitted that concept of fair trial is not only for accused, it is equally applicable for victim and prosecution. He submits that since, learned counsel for the petitioners himself refused to cross examine the witness therefore, now he is estopped for applying for cross examination from PW-1 Sunita. 2 complainant Mr. Anoop Dhand supported the impugned order and submitted that concept of fair trial is not only for accused, it is equally applicable for victim and prosecution. He submits that since, learned counsel for the petitioners himself refused to cross examine the witness therefore, now he is estopped for applying for cross examination from PW-1 Sunita. He further submits that so called revision petition was dismissed on 12.07.2013 and the said application was submitted on 02.07.2014 after 20 months from the closure of the cross examination. He submits that conduct of petitioner no. 1 is also relevant as they remained absconded for a considerable period. False cases were also lodged against the respondent no. 2 complainant for harassing her and trial was also delayed due to the conduct of the petitioners, therefore, they are not entitled for cross examination. Not only this, in the petition filed by the petitioners, coordinate bench of this court has issued direction for concluding trial of the case within 4 months. Still petitioners accused are not cooperating to learned trial court in concluding the trial, therefore, this misc. petition may be dismissed. 7. Learned PP also supported the arguments advanced by the learned counsel for the respondent no. 2 and submitted that after refusing for cross examination, no further opportunity can be given. 8. I have considered the submissions made at bar as perused the available record. 9. In the matter of Natasha Singh (supra) Hon’ble Supreme Court observed as under :- Fair trial is the main object of criminal procedure, and it is the duty of the court to ensure that such fairness is not hampered or threatened in any manner. Fair trial entails the interests of the accused, the victim and of the society, and therefore, fair trial includes the grant of fair and proper opportunities to the person concerned, and the same must be ensured as this is a constitutional, as well as a human right. Thus, under no circumstances can a person’s right to fair trial be jeopardised. Adducing evidence in support of the defence is a valuable right. Denial of such right would amount to the denial of a fair trial. Thus, under no circumstances can a person’s right to fair trial be jeopardised. Adducing evidence in support of the defence is a valuable right. Denial of such right would amount to the denial of a fair trial. Thus, it is essential that the rules of procedure that have been designed to ensure justice are scrupulously followed, and the court must be zealous in ensuring that there is no breach of the same, which is not disputed. 10. But in the case in hand, it is admitted position that there was no stay on in the matter from the revisional court. Time and again this court issued circulars that mere filing of revision petition or appeal is no ground for stay of trial. 11. Since, there was no stay, as such trial court was bound to proceed with the trial according to law and after examination-in-chief recorded by the learned trial court of PW-1 Sunita, trial court afforded opportunity of cross examination to petitioners accused but without any stay of the revisional court, learned counsel for the petitioners refused to cross examine. Therefore, it cannot be said that opportunity of cross examination was not given to petitioners. 12. In the matter of Rajaram Prasad Yadav v. State of Bihar reported in (2013) 14 SCC 461 Hon’ble Supreme Court observed as under :- "The power under Section 311 Cr.P.C. must therefore, be invoked by the Court only in order to meet the ends of justice for strong and valid reasons and the same must be exercised with care, caution and circumspection. The Court should bear in mind that fair trial entails the interest of the accused, the victim and the society and, therefore, the grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right." 13. Therefore, it is clear that the concept of fair trial is applicable for accused as well as victim and prosecution. 14. In the case in hand, since opportunity of cross examination has already been given for which petitioners refused, therefore, they are not entitled for further opportunity without any cogent reason. 15. In view of it, there is no substance in this petition and same is dismissed.