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Rajasthan High Court · body

2018 DIGILAW 1020 (RAJ)

Amit Singhal v. State of Rajasthan

2018-04-17

VIJAY BISHNOI

body2018
JUDGMENT & ORDER : Vijay Bishnoi, J. This criminal misc. petition under Section 482 Cr.P.C. has been filed by the petitioner being aggrieved with the order dated 09.11.2016 passed by the Additional Chief Judicial Magistrate, Parbatsar, District Nagaur (hereinafter to be referred as 'the ACJM, Parbatsar') in Regular Criminal Case No.300/2016, whereby the application filed by the petitioner under Section 246 (4) Cr.P.C. has been dismissed by the ACJM, Parbatsar. 2. Brief facts of the case are that one Madan Lal Sharma filed a complaint against the petitioner under the various provisions of Pre-Conception and Pre-Natal Diagnostic Techniques Act (hereinafter to be referred as 'the PCPNDT Act') in the court of Special Additional Chief Judicial Magistrate (PCPNDT Act Cases), Ajmer (hereinafter to be referred as 'the trial court'). The complaint against the petitioner is a warrant trial, hence, pre charge evidence was recorded and the trial court recorded the evidence of 15 prosecution witnesses. Thereafter on 15.04.2015, the trial court, after hearing arguments on framing of charges, discharged some persons, against whom the complaint was filed, however, framed charges against the petitioner and three other persons under the various provisions of PCPNDT Act. The precise charge framed against the petitioner is for the offence punishable under Section 23 of the PCPNDT Act and Section 201 IPC. At the time of framing of charges, the petitioner was present in the trial court and the same was read over and explained to him, which he denied and claimed trial. 3. Immediately, on the same day, an application under Section 91 Cr.P.C. was moved on behalf of the petitioner and other accused persons and the matter was fixed by the trial court for 27.04.2015 for filing reply to the said application and for arguments. On 27.04.2015, the matter was again adjourned for 28.04.2015. On 28.04.2015, arguments on the application under Section 91 Cr.P.C. were heard and the matter was fixed for 01.05.2015 for passing the order on the said application. 4. It is noticed that on 28.04.2015, other accused persons were present, however, the petitioner was not present and the application for exemption of his personal presence was granted by the trial court. On 01.05.2015, the application under Section 91 Cr.P.C., preferred on behalf of the petitioner and other accused persons, was rejected and the matter was fixed for 15.05.2015 for the purpose of recording of statements of prosecution witnesses. 5. On 01.05.2015, the application under Section 91 Cr.P.C., preferred on behalf of the petitioner and other accused persons, was rejected and the matter was fixed for 15.05.2015 for the purpose of recording of statements of prosecution witnesses. 5. On 15.05.2015, the statements of one prosecution witness were recorded and on the same day, an application under Section 311 Cr.P.C. was also filed on behalf of the Assistant Public Prosecutor for summoning one of the witnesses. Thereafter the matter was fixed for arguments on the application under Section 311 Cr.P.C. on 28.05.2015, 06.06.2015, 11.06.2015 and 29.06.2015. It is noticed that on those dates, the petitioner was not present and his application seeking exemption from his personal presence was granted by the trial court. 6. Ultimately, the application under Section 311 Cr.P.C., preferred on behalf of the Assistant Public Prosecutor, was allowed by the trial court on 04.07.2015 and one Miss. Puja Awana, IPS was summoned for giving her evidence on behalf of the prosecution and other prosecution witnesses were also summoned and the matter was fixed for 16.07.2015. On 04.07.2015, the petitioner was not present and an application seeking exemption from his personal presence was granted. The matter was thereafter fixed for 16.07.2015, 21.07.2015, 12.08.2015 and 22.08.2015 and on those dates the prosecution witnesses were not present so their evidence could not be recorded and the petitioner was also not present on 21.07.2015 and 12.08.2015 and his application seeking exemption from personal appearance on said dates were also granted by the trial court. 7. On 02.09.2015, the statements of one witness PW-10 Bal Kishan were recorded in the presence of the accused persons and the matter was fixed for 03.09.2015. On 03.09.2015, the prosecution witnesses were not present and the matter was fixed for 15.09.2015. On 15.09.2015 again no witness was present and the matter was fixed for 30.09.2015. On the above dates, the petitioner was present before the trial court. 8. On 30.09.2015, the petitioner was not present and the prosecution witnesses were also not present the trial court ordered for issuing bailable warrant for summoning of the prosecution witnesses and also instructed the Assistant Public Prosecutor to produce witness Miss. Puja Awana, IPS for giving her evidence on the next date of hearing i.e. on 08.10.2015. 9. 8. On 30.09.2015, the petitioner was not present and the prosecution witnesses were also not present the trial court ordered for issuing bailable warrant for summoning of the prosecution witnesses and also instructed the Assistant Public Prosecutor to produce witness Miss. Puja Awana, IPS for giving her evidence on the next date of hearing i.e. on 08.10.2015. 9. On 08.10.2015, the prosecution witnesses were not present and the petitioner was also not present, however, he was exempted by the trial court for his personal presence and the matter was fixed for 09.10.2015. On 09.10.2015, the petitioner was not present, however, he was exempted from his personal appearance by the trial court but evidence of one prosecution witness PW-11 was recorded, however, the other prosecution witnesses were not present and, therefore, they were summoned through bailable warrants and the next date was fixed as 29.10.2015. 10. On 29.10.2015, again no prosecution witnesses were present and they were again called by way of bailable warrants and the matter was fixed for 04.11.2015. On 04.11.2015, the statements of one prosecution witness PW-12 Dr. Ashok Kumar were recorded and the other prosecution witnesses were summoned through bailable warrants and the matter was fixed for 21.11.2015. On 21.11.2015, on account of non-availability of Presiding Officer, the matter was fixed for 09.12.2015. On 09.12.2015, the prosecution witnesses were not produced and they were called through bailable warrants and the matter was fixed for 13.01.2016. On 13.01.2016, the evidence of three prosecution witnesses were recorded, however, taking into consideration the fact that despite providing last opportunity to the prosecution, the other prosecution witnesses were not produced, the trial court closed the evidence of the prosecution and the matter was fixed for recording of statement of accused persons on 25.01.2016. 11. On 25.01.2016, application under Section 246(4) Cr.P.C. was preferred on behalf of the petitioner with a prayer for summoning some of the witnesses, whose evidence were recorded at the pre charge stage. The trial court fixed the next date as 01.02.2016 for hearing the parties concerned on the said application. The arguments on the application preferred by the petitioner under Section 246(4) Cr.P.C. were deferred on several dates. 12. In the meantime, vide order dated 02.08.2016, the matter was transferred to the jurisdiction of the District and Sessions Judge, Merta pursuant to the order dated 25.05.2016 passed by this Court. The arguments on the application preferred by the petitioner under Section 246(4) Cr.P.C. were deferred on several dates. 12. In the meantime, vide order dated 02.08.2016, the matter was transferred to the jurisdiction of the District and Sessions Judge, Merta pursuant to the order dated 25.05.2016 passed by this Court. On 30.08.2016, from the court of District and Sessions Judge, Merta, the matter was transferred to the ACJM, Parbatsar, who has ultimately dismissed the application preferred on behalf of the petitioner under Section 246(4) Cr.P.C. vide impugned order dated 09.11.2016. Hence, this criminal misc. petition. 13. It is noticed that ACJM, Parbatsar has dismissed the application filed by the petitioner under Section 246(4) Cr.P.C. mainly on the ground that the petitioner has moved the said application after about one year with the intention to delay the matter. The ACJM, Parbatsar has observed that as per the provision of Section 246(4) Cr.P.C., if the accused person does not plead guilty or claims to be tried, he shall require to say immediately to the Magistrate that he wants to cross-examine the prosecution witness or prosecution witnesses, whose evidence were recorded at pre trial stage. The ACJM, Parbatsar has opined that as the petitioner has failed to inform the trial court immediately after framing of charges that he wants to cross-examine some of the prosecution witnesses, whose statements were recorded at pre trial stage, his application with a prayer for cross-examining those prosecution witnesses at a belated stage cannot be granted. 14. Learned counsel for the petitioner has submitted that as a matter of fact the petitioner had no opportunity to inform the trial court regarding his wish to cross-examine some of the prosecution witnesses, whose evidence were recorded at pre trial stage because on 15.04.2015, the charges were framed against the petitioner and other co-accused persons and on the same day an application was moved on behalf of the petitioner under Section 91 Cr.P.C. and the trial court has fixed the matter for 27.04.2015 for hearing arguments on the said application. The said application come to be dismissed by the trial court vide order dated 01.05.2015, whereby the trial court has proceeded to call two prosecution witnesses for giving evidence. 15. The said application come to be dismissed by the trial court vide order dated 01.05.2015, whereby the trial court has proceeded to call two prosecution witnesses for giving evidence. 15. Learned counsel for the petitioner has submitted that the Magistrate concerned was required to call the petitioner whether he wants to cross-examine any of the witnesses, whose evidence were recorded at pre trial stage, at the time of dismissal of the application filed by the petitioner and other co-accused persons under Section 91 Cr.P.C. It is argued on behalf of the petitioner that the cross-examination of the prosecution witnesses is a valuable right available to an accused person and opportunity of cross-examination to the prosecution witness cannot be denied for technical reasons or for minor lapse on the part of accused. 16. Learned counsel for the petitioner has further argued that after 01.05.2015, the trial court proceeded to record the statements of one of the prosecution witnesses on 15.05.2015 and thereafter the matter was fixed for hearing the arguments on application under Section 311 Cr.P.C. preferred by the prosecution and ultimately on 04.07.2015 the said application was allowed and thereafter the trial court proceeded to record the statements of some of the prosecution witnesses on the further dates and has also summoned some of the prosecution witnesses from time to time, who did not appear before it and ultimately when the trial court closed the evidence of the prosecution, the petitioner had moved the application under Section 246(4) Cr.P.C. without any delay. 17. It is also argued by learned counsel for the petitioner that his application seeking permission to cross-examine some of the prosecution witnesses, whose statements were recorded at pre trial stage, was moved on 25.01.2016, however, the same was decided by the ACJM, Parbatsar only on 09.11.2016 and looking to this fact also, it is clear that when the Court took almost more than ten months in deciding the application filed by the petitioner under Section 246(4) Cr.P.C., the ACJM, Parbatsar has erred in rejecting the application filed by the petitioner under Section 246(4) Cr.P.C. on the ground of delay. 18. Learned counsel for the petitioner has submitted that in the interest of justice one opportunity is required to be given to the petitioner to cross-examine some of the prosecution witnesses, whose evidence were recorded at pre trial stage for suitably defending him against the criminal prosecution. 19. 18. Learned counsel for the petitioner has submitted that in the interest of justice one opportunity is required to be given to the petitioner to cross-examine some of the prosecution witnesses, whose evidence were recorded at pre trial stage for suitably defending him against the criminal prosecution. 19. On the strength of the above arguments, learned counsel for the petitioner has prayed that this criminal misc. petition may kindly be allowed and ACJM, Parbatsar be directed to allow the application of the petitioner preferred under Section 246(4) Cr.P.C. and the petitioner be allowed to cross-examine those witnesses, whose description is given in the application itself, whose statements were recorded at pre trial stage. 20. Per contra, learned Public Prosecutor has opposed this criminal misc. petition and argued that as the petitioner did not inform the trial court immediately after framing of charge about the fact that he wishes to cross-examine the witnesses, whose statements were recorded at pre trial state and has moved application under Section 246(4) Cr.P.C. after the delay of about one year, the ACJM, Parbatsar has not committed any illegality in passing the impugned order. 21. Heard learned counsel for the parties and carefully scrutinized the certified copies of order-sheets of the case, produced by learned counsel for the petitioner, pending against the petitioner. 22. It will be useful to reproduce the Section 246 Cr.P.C., which reads as under :- "246. Procedure where accused is not discharged - (1) If, when such evidence has been taken, or at any previous stage of the case, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused. (2) The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty or has any defence to make. (3) If the accused pleads guilty, the Magistrate shall record the plea, and may, in his discretion, convict him thereon. (2) The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty or has any defence to make. (3) If the accused pleads guilty, the Magistrate shall record the plea, and may, in his discretion, convict him thereon. (4) If the accused refuses to plead, or does not plead or claims to be tried or if the accused is not convicted under sub-section (3), he shall be required to state, at the commencement of the next hearing of the case, or, if the Magistrate for reasons to be recorded in writing so thinks fit, forthwith, whether he wishes to cross-examine any, and if so, which, of the witnesses for the prosecution whose evidence has been taken. (5) If he says he does so wish, the witnesses named by him shall be recalled and, after cross-examination and re-examination (if any), they shall be discharged. (6) The evidence of any remaining witnesses for the prosecution shall next be taken and after cross-examination and re-examination (if any), they shall also be discharged." 23. From the above, it is clear that the concerned Magistrate, after taking into consideration the evidence taken by it at the previous stage of the case, was of the opinion that on the basis of the said evidence, the accused has committed an offence triable under Chapter XIX of Cr.P.C., he shall frame in writing a charge against accused. After framing of charges, the same shall then be read and explained to the accused and he shall be asked whether he pleads guilty of the offence charged or claims to be tried. If the accused pleads guilty, the Magistrate shall record the plea and may convict him thereon, as per his discretion. However, if the accused refuses to plead guilty or claims to be tried or if the accused is not convicted under sub-section (3) he shall be required to state to the Magistrate, at the commencement of the next hearing of the case or, if the Magistrate for reasons to be recorded in writing so thinks fit, forthwith whether he wishes to cross-examine any, and if so, which, of the witnesses for the prosecution whose evidence has been taken. 24. 24. It is noticed that in the present case the charge for the offence punishable under Section 23 of the PCPNDT Act was framed against the petitioner on 15.04.2015 and on the same day an application was moved on behalf of the petitioner and other co-accused persons under Section 91 Cr.P.C. and the trial court fixed the matter for argument on the said application on 24.04.2015 and thereafter that application was dismissed on 01.05.2015 and on the same day the Magistrate called the prosecution witnesses for giving evidence. 25. From the order-sheets of the case, it is clear that the Magistrate did not call the petitioner whether he wishes to cross-examine any of the witnesses, whose evidence were taken at the pre trial stage. 26. After taking into consideration the said aspect of the matter, this Court is of the opinion that in the interest of justice and in the peculiar facts and circumstances of the case one opportunity should have been granted to the petitioner to cross-examine the witnesses, whose evidence were recorded by the trial court at pre trial stage. 27. In such circumstance, this criminal misc. petition is allowed. The impugned order dated 09.11.2016 passed by the Additional Chief Judicial Magistrate, Parbatsar, District Nagaur in Regular Criminal Case No.300/2016 is set aside. The ACJM, Parbatsar is directed to consider the application preferred by the petitioner under Section 246(4) Cr.P.C. afresh after providing opportunity of hearing to the petitioner and to pass a fresh order in the light of above observations. 28. Copy of this order be sent to the ACJM, Parbatsar.