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2017 DIGILAW 1028 (JK)

Shiv Charan Singh v. State of J&K

2017-11-24

SANJAY KUMAR GUPTA

body2017
JUDGMENT : Sanjay Kumar Gupta, J. 1. In the instant Criminal Revision Petition, the petitioner has assailed the order dated 20th September, 2016, passed by the learned Principal Sessions Judge, Kathua, by which an application preferred by the petitioner under Section 272(2), seeking deferment of the cross-examination of certain witnesses has been rejected. 2. The factual matrix leading to the filing of the instant petition stated are that the petitioner and the proforma respondent are facing trial for the commission of offences under Sections 307/326/323/347 and 34 of RPC read with Section 30 of the Arms Act and the aforesaid trial is pending adjudication before the Court of learned Principal Sessions Judge, Kathua. It is stated by the petitioner that in the Challan (Annexure-B) presented against him, there are several eye witnesses named in the Challan and they are stated to be the eye witnesses in respect of the occurrence, leading to the commencement of criminal proceedings against the petitioner. It is further submitted that prosecution witnesses, namely, Rashpal Singh, Kuldeep Singh, Surinder Singh, Pawan Singh, Jaipal Singh and one-Sultan Singh are the real brothers (cited as PW-2 to 7) and they belong to the same family, whereas, PW-1, namely, Bhanu Pratap is also related to them. 3. On 20th September, 2016, when PW-2 (Rashpal Singh) was present in the Court for getting his statement recorded, the petitioner moved an application (Annexure-C) under Section 272(2) of the Code of Criminal Procedure, seeking the indulgence of the learned Trial Court to defer the cross-examination of the said witness till the other cited eye witnesses viz. PW-1 and 3-7 are examined. The aforesaid application was moved on the ground that since all the prosecution witnesses constitute one family and in case, the petitioner cross-examines any of the witnesses, then the defence of the petitioner/accused would be disclosed and the other witnesses may change their account/narration in order to meet the discrepancies pointed out by the accused during the course of cross-examination, as all of them may discuss and strategize their further depositions and as such, the same would have caused severe prejudice to the petitioner/accused for projecting his defence to the charges leveled against him and on another. 4. 4. The petitioner further states that the prosecution was not called upon to file any response to the said application and the learned Trial Court dismissed the aforesaid application preferred by the petitioner on the same date and thereafter, directed the counsel appearing for the petitioner to cross-examine the said witness. But on the submission made by the learned counsel for the petitioner expressing his inability to cross-examine the said witness, as the petitioner intended to prefer a Revision Petition against the order dated 20th September, 2016, the learned Trial Court closed the right of the cross-examination in respect of PW-2, namely, Rashpal Singh. 5. The petitioner is aggrieved of the aforesaid order passed in an application under Section 272(2) of Cr.P.C. as well as the direction of the learned Trial Court, closing the right of cross-examination despite submission made by the counsel appearing for the petitioner, seeking an opportunity to avail the remedy of revision and as such, seeks to challenge the order passed in the application as well as the order, closing the right of cross-examination on the plea of filing revision and as such, seeks to challenge the same on the following amongst other grounds:- (i) The older impugned, dismissing the application preferred by the petitioner is illegal and thoroughly unjustified and as such, the same is liable to be set aside. (ii) Section 272(2) of the Cr.P.C. provides for the evidence of the prosecution and Sub-Section (2) of the said provision gives a discretion to the Court to permit the cross- examination of any witness to be deferred until any other witness or witnesses have been examined in addition to the power conferred on the Trial Court to recall any witness for further examination. The aforesaid provision of Cr.P.C. has a very sacrosanct purpose, as it provides an exception to the general rule in respect of the examination of witnesses laid down under Sections 137 and 138 of the Evidence Act. It is respectfully submitted that the discretion conferred on the Court under Sub-Section (2) of Section 272 must be exercised judiciously keeping in view the facts and circumstances of each case, more particularly, by strictly adhering to the basic principles of criminal jurisprudence. (iii) Admittedly, the Evidence Act, 1977 provides for examination of witnesses as well as the order, in which the examinations ought to be held. (iii) Admittedly, the Evidence Act, 1977 provides for examination of witnesses as well as the order, in which the examinations ought to be held. But, the provision of the Evidence Act is given an exception in Sub-Section (2) of the Section 272 of the Cr.P.C. and resultantly, a power in the form of a discretion is conferred upon the Court to defer the cross-examination of a witness or witnesses. Therefore, it is cherished rule of interpretation that an exception is always an exception to the general rule and the Court cannot be justified in ignoring a statutory exception by taking recourse to the general rule without adverting to the facts and circumstances justifying such conclusion. But in the present case, the learned Trial Court has dismissed the application preferred by the petitioner only on the ground that since the deferment of cross-examination is opposite to the general rule contained in Sections 137 and 138 of the Evidence Act and as such, the application is rejected. (iv) It is a settled position of law that an accused in a criminal case only has a right of cross-examination available to him to rebut the allegations against him and in cases, where there is a likelihood of any attempt on the part of prosecution to fill lacunas the Court shall be justified in exercising the powers of deferring the cross-examination. It is further submitted that the right of an accused to prepare and project a defence in criminal trial and the likelihood of prejudice is an important factor to be considered in all such cases and a reference to the versions of different witnesses would become very relevant and inescapable. But the learned Trial Court has passed the order impugned only on the expectation that all the witnesses, whose evidence was sought to be deferred, would depose in line with their versions recorded during the course of investigation. Therefore, there is manifest illegality and non-application of point apparent On the face of record. (v) The petitioner shall suffer immensely and he shall be severely prejudiced in case, the examination of the witnesses referred to in the application is not deferred, as admittedly PW 2-7 are the real brothers and they are deeply interested to falsely implicate the petitioner and the other accused for the commission of offences, as alleged in the Challan. (v) The petitioner shall suffer immensely and he shall be severely prejudiced in case, the examination of the witnesses referred to in the application is not deferred, as admittedly PW 2-7 are the real brothers and they are deeply interested to falsely implicate the petitioner and the other accused for the commission of offences, as alleged in the Challan. The learned Trial Court was unjustified in dismissing the application preferred by the petitioner and the petitioner is as such, aggrieved of the order impugned. (vi) Though an accused in a criminal case may not have a right of seeking deferment of the cross-examination of witnesses and the same is always subject of discretion of the Court, yet even the discretion so conferred, must be exercised on the touchstone of sound judicial principles applicable for the administration of criminal justice. Therefore, the Order impugned deserves to be set aside. (vii) Equally, the learned Trial Court was not justified in closing the right of cross-examination of the petitioner when the plea for preferring a revision petition was raised. The learned Trial Court could have afforded an opportunity to the petitioner to avail the revision petition and at least till such time, the cross-examination of the witness in attendance could have been deferred. Therefore, a serious prejudice to the rights of the petitioner is caused and as such, the petitioner is constrained to approach this Hon'ble Court through the medium of this instant petition. The orders passed by the learned Trial Court make out a clear case of jurisdictional error. 6. I have considered the arguments and law on the subjects. 7. Section 272 Cr.P.C. reads as under:- "272. Evidence for prosecution - (1) On the date so fixed, the Judge shall proceed to take all such evidence as may be produced in Support of the prosecution [except such evidence which the accused may admit in an application made in this behalf]. (2) The Judge may, in his discretion permit the cross-examination, of any witness to be deferred until any other witness or witnesses have been examined or recall any witness for further cross-examination." 8. Bare perusal of relevant part of this section, it is evident that it is discretion of trial court to defer the cross examination of particular witness, till other witnesses are examined. Bare perusal of relevant part of this section, it is evident that it is discretion of trial court to defer the cross examination of particular witness, till other witnesses are examined. There is word "may" which means that it is not a mandatory provision but an optional, further bare perusal of this provision, it is evident that only cross-examination of particular witness has to be deferred, and not all the material witnesses. 9. General Law is that it is imperative if the examination-in-chief is over, the cross-examination should be completed on the same day. If the examination of a witness continues till late hours the trial can be adjourned to the next day for cross-examination. The law requires special reasons to be recorded for grant of time. If an accused for his benefit takes the trial on the path of total mockery, it cannot be countenanced. The Court has a sacred duty to see that the a fair trial is to be fair both to the defence and the prosecution as well as to the victim. 10. The section 272(2) Cr.P.C. is exception to this general rule. But court has to see as to what is intention of accused in deferment of cross-examination of witnesses. 11. The case against the petitioner, is that on 28.9.2015, he along with another accused on account of previous enmity regarding land at about 1.30 PM, when complainant party was fixing cement pole on their land, arguments took place between them with regard to fixing of poles; thereafter accused party fired upon the complainant party with double barrel gun with intentions to kill; as a result of which three persons got serious injuries. Accused are thus facing trial offences u/s. 307/326/323/447/34/RPC and section 30 of A. Act. Accused have been charge sheeted on 29.12.2015. On 18.7.2016 PW Rashpal Singh appeared, but could not be examined as one of accused was absent on 19.7.2016 PW Surinder Singh another eye witness was present but could not be examined due to absence of accused; thereafter PW Rashpal Singh appeared on 23.8.2016 and 19.9.2016 but again his statement was not recorded as Advocates have suspended the work, on next two dates again on 23.8.2016 and 19.9.2016, this witness was present but statement was not recorded. On 20.9.2016 this witness who is 65 years old as per observation of court below, was present but counsel for accused filed application for deferment of cross examination till other eye witnesses are examined. Court below dismissed the application same day on the ground that power under section 272(2) Cr.P.C. has to be used in exceptional case. 12. Although trial court has power to defer the cross-examination of witnesses in terms of section 272(2) Cr.P.C. but conduct of accused is most relevant for granting such deferment. In present case, bare perusal of conduct of accused persons, it is evident that they have always tried to avoid examination of witnesses with one pretext to another. Procedural law is meant for administration of justice and not to thwart the justice. Allegations against the accused are serious. Had the intentions of accused would be an honest and fair, they would have filed application in this regard after the charges were framed or at the time when witness first time appeared. 13. Hence, I do not find any ground to allow this revision petition, the order of court below is upheld. 14. This petition is dismissed. Record of court below be sent back with direction to decide it expeditiously.