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2018 DIGILAW 1007 (ALL)

PARMILA v. STATE OF U. P.

2018-04-24

SIDDHARTHA VARMA

body2018
JUDGMENT Hon’ble Siddhartha Varma, J.—Heard learned counsel for the parties and perused the records. 2. The writ petition has been filed against the order dated 26.12.2017 passed by the Sub-Divisional Officer, Farenda, Maharajganj and against the order dated 28.3.2018 passed in revision by the Additional District Judge, Court No. 4, Maharajganj. When the Election Petition was being heard on 20.12.2017, the Sub-Divisional Officer passed an order that the defendant could cross-examine her witnesses on 23.12.2017 and it was also stated in the order that if on 23.12.2017, the Court was closed, then the matter would be posted for 26.12.2017. On 26.12.2017 opportunity to cross-examine the witnesses of the defendant was closed and the matter was posted for final hearing on 27.12.2017. Aggrieved thereof, the petitioner filed a recall application on 27.12.2017 saying that on 26.12.2017, witnesses could not be produced and that when they were present on 27.12.2017 the petitioner be allowed to proceed with the cross-examination. However, the Sub-Divisional Officer rejected the application by a laconic order on 21.2.2018 staying that when on 26.12.2017 date was fixed for 27.12.2017, there was no reason why the defendant should be allowed to cross-examine her witnesses. The petitioner, thereafter, filed a revision against the order dated 21.2.2018, which was also dismissed on 28.3.2018 with an observation that the petitioner had not challenged the order dated 26.12.2017 and the mere challenge of the order dated 21.2.2018 would be of no consequence. 3. Learned counsel for the petitioner has made the following submission : (i) On 20.12.2017, the Sub-Divisional Officer committed a mistake by fixing the case for 23.12.2017 which date he had suspected could be a holiday. The further mistake he committed was that on 20.12.2017, he had stated in the order that if 23.12.2017 was a holiday the case would be taken up on 26.12.2017. He virtually fixed two dates in the case on 20.12.2017. In the result on both dates the witnesses could not be present. (ii) Learned counsel has submitted that when on 26.12.2017, i.e. on the adjourned date, when the witnesses were not present and a date was being fixed for 27.12.2017 then cross-examination of the witnesses should have been allowed on 27.12.2017. In the result on both dates the witnesses could not be present. (ii) Learned counsel has submitted that when on 26.12.2017, i.e. on the adjourned date, when the witnesses were not present and a date was being fixed for 27.12.2017 then cross-examination of the witnesses should have been allowed on 27.12.2017. (iii) Learned counsel for the petitioner has further, relying upon Ayaaubkhan Noorkhan Pathan v. State of Maharashtra and others, AIR 2013 SC 58 , submitted that right of cross-examination is an integral part of the principles of natural justice. For this purpose he relied upon paragraphs 25 & 30 and so they are being reproduced here asunder : “25- In New India Assurance Company Ltd. v. Nusli Neville Wadia and another, AIR 2008 SC 876 ; this Court considered a case under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 and held as follows : “If some facts are to be proved by the landlord, indisputably the occupant should get an opportunity to cross-examine. The witness who intends to prove the said fact has the right to cross-examine the witness. This may not be provided by under the statute, but it being a part of the principle of natural justice should be held to be indefeasible right.” (Emphasis added) In view of the above, we are of the considered opinion that the right of cross-examination is an integral part of the principles of natural justice. 30- The aforesaid discussion makes it evident that, not only should the opportunity of cross-examination be made available, but it should be one of effective cross-examination, so as to meet the requirement of the principles of natural justice. In the absence of such an opportunity, it cannot be held that the matter has been decided in accordance with law, as cross-examination is an integral part and parcel of the principles of natural justice. “ (iv) Learned counsel further submitted that in the Revisional Court when he had filed a revision against the order dated 21.2.2018 then it should have been presumed by the Revisional Court that when the order dated 21.2.2018 was being challenged the order dated 26.12.2017 was also challenged as it had merged in the order dated 21.2.2018. 4. “ (iv) Learned counsel further submitted that in the Revisional Court when he had filed a revision against the order dated 21.2.2018 then it should have been presumed by the Revisional Court that when the order dated 21.2.2018 was being challenged the order dated 26.12.2017 was also challenged as it had merged in the order dated 21.2.2018. 4. In reply learned counsel appearing for the respondent No. 4, however, submitted that since the petitioner had failed to produce his witnesses on 26.12.2017 and since there was an order of the High Court dated 11.2.2016 passed in Writ Petition No. 5844 of 2016 that the Election Petition itself had to be decided within a period of six months, any adjournment of the case was against the order passed in Writ Petition No. 5844 of 2016 and, therefore, the Sub-Divisional Officer rightly closed the opportunity of cross-examination on 26.12.2017 and posted the matter for final hearing on 27.12.2017. He also submitted that only to bring the revision within the period of limitation the order dated 21.2.2018 was challenged and the order dated 26.12.2017 was not challenged. 5. Having heard the learned counsel for the parties, I am of the view that cross-examination of the witnesses, now an integral part the principles of natural justice, was very essential. In the instant case when the Sub-Divisional Magistrate had fixed virtually two dates i.e. 23.12.2017 and 26.12.2017 then it was very difficult for the petitioner to take her witnesses on both the dates. The Court should have fixed only one date and if the case could not be taken up that date he should have fixed another date regarding which the petitioner and also the witnesses should have had notice. There are some practical difficulties in bringing the witnesses before the Court and when there is a confusion regarding dates, it becomes even more difficult. In the instant case when the Court was closed on 23.12.2017, learned counsel for the petitioner states that the witnesses could not be brought on 26.12.2017. Witnesses could have been brought only on a definite date. Further, I find that since the right to cross-examination which is now an integral part of the principles of natural justice as has been held in Ayaaubkhan Noorkhan Pathan v. State of Maharashtra and others, AIR 2013 SC 58 , the Court should have fixed a date for cross-examination of the witnesses. 6. Further, I find that since the right to cross-examination which is now an integral part of the principles of natural justice as has been held in Ayaaubkhan Noorkhan Pathan v. State of Maharashtra and others, AIR 2013 SC 58 , the Court should have fixed a date for cross-examination of the witnesses. 6. Furthermore, the submission of the learned counsel for the respondents that there was an order of the High Court to decide the case within a period of six months and therefore the Court did not cross-examine the witnesses does not hold much water as had the Court cross-examined the witness on 27.12.2017, on which date admittedly the witnesses were present then the exercise of filing a revision and, thereafter of filing the instant writ petition would have been avoided. Almost four months have now passed after the opportunity to cross-examine was closed. This time could have been utilized by the Election Tribunal to proceed with the trial had the cross-examination of the witnesses been done on 27.12.2017 7. Under such circumstances, the orders dated 26.12.207, 27.12.2017 and 21.2.2018 passed by the Election Tribunal/Sub-Divisional Officer and the order dated 28.3.2018 passed by the Revisional Court are set aside. The matter is remanded back to the Sub-Divisional Officer, who shall now fix a date for cross-examination of the witnesses of the petitioner and thereafter proceed with the case. 8. Accordingly, the writ petition is allowed. The Election Petition shall be decided within a period of two months from the presentation of a certified copy of this order.