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Madhya Pradesh High Court · body

2018 DIGILAW 341 (MP)

Mukesh Tiwari v. State of M. P.

2018-03-21

ANURAG SHRIVASTAVA, S.K.SETH

body2018
ORDER 1. The applicant/accused has preferred revision under section 397 r/w 401 of CrPC being aggrieved of order dated 18.1.2018 passed by Special Judge (Lokayukta) Jabalpur in Special Case No. 9/2015 whereby the right of the cross-examination of the prosecution witness No.8 namely Prabhat Shukla has been closed. 2. The applicant is facing a trial under sections 7, 13(1)(d) and 13(2) of Prevention of Corruption Act, before the Court of Special Judge, (Lokayukta) Jabalpur, wherein the prosecution witnesses are being examined. The trial Court recorded examination-in-chief of one of the prosecution witness Prabhat Shukla (PW-8) on 13.9.2017 and adjourned case on request of accused deferring the cross-examination of the witness. Thereafter, on 9.11.2017 the witness (PW-8) was present before the Court but the case was adjourned on the request of accused. On 18.1.2018 the witness (PW-8) was present but the accused prayed for adjournment on the ground that his senior counsel was not available as he had gone out of town due to some urgent work. The trial Court rejected the prayer and closed the right of cross-examination of the witness by passing the impugned order. 3. It is argued by the learned counsel that PW-8 is an important witness who has conducted the investigation and filed the charge sheet, therefore, his cross-examination is very important to challenge the authenticity of investigation and veracity of statement of other prosecution witnesses. Looking to the gravity of the offence, fact and circumstances of the case, which are beyond control of the counsel of the applicant, the trial Court should have given an opportunity of cross-examination of the witness. The applicant is ready to bear the expenses of this witness and to cross-examine him, on a date fixed by this Court. The trial Court has committed illegality in closing the right of cross-examination of the accused. 4. Having considered the submission of the learned counsel for the applicant and on perusal of record, it appears that during trial on 13.9.2017 the trial Court has recorded the examination-in-chief of witness (PW-8) and deferred his cross-examination and adjourned the case on the request of accused as his counsel was out of station. Thereafter, on 9.11.2017 the witness was present but the case was adjourned on the request of counsel for applicant as he had not prepared the case. Thereafter, on 9.11.2017 the witness was present but the case was adjourned on the request of counsel for applicant as he had not prepared the case. Subsequently, on 18.1.2018 the witness was present but counsel for the accused has sought adjournment on the ground that his senior counsel was out of station. This shows that since, 13.9.2017 the counsel for accused was repeatedly seeking adjournments. The Court has granted two adjournments on his request. As per proviso (b) of section 309 (2) CrPC “The fact that the pleader of the party is engaged in another Court shall not be a graund for adjournment. The priviso (c) further provides that Court can dispensed with cross-examination of the witness where a witness is present in Court but a party or his pleader is not present”. In case law Mohd. Khalid v. State of West Bengal [ (2002) 7 SCC 334 ], Hon'ble apex Court observed as under : “54. Before parting with the case, we may point out that the Designated Court deferred the cross-examination of the witnesses for a long time. That is a feature which is being noticed in many cases. Unnecessary adjournments give a scope for a grievance that the accused persons get a time to get over the witnesses. Whatever be the truth in this allegation, the fact remains that such adjournments lack the spirit of section 309 of the Code. When a witness is available and his examination-in-chief is over, unless compelling reasons are there, the trial Court should not adjourn the matter on the mere asking. These aspects were highlighted by this Court in State of U.P. v. Shambhu Nath Singh [ (2001) 4 SCC 667 ], and N.G. Dastane v. Shrikant S. Shivde [ (2001) 6 SCC 135 ..........].” 5. Hon'ble apex Court has reiterated the same principle in case law Gurnaib Singh v. State of Punjab [ (2013) 7 SCC 108 ]. 6. In the present case, it is not stated by the applicant that on 18.1.2018 when his counsel was not present, he was not in a position to engage another counsel to contest his case. Therefore, merely on asking that the counsel is not present to cross-examine the witness, the case cannot be adjourned. The trial Court has committed no illegality in refusing to grant adjournment under these circumstances and has rightly closed the right of cross-examination. 7. Therefore, merely on asking that the counsel is not present to cross-examine the witness, the case cannot be adjourned. The trial Court has committed no illegality in refusing to grant adjournment under these circumstances and has rightly closed the right of cross-examination. 7. We do not find any illegality in the impugned order passed by the trial Court. Consequently, the revision is dismissed.