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2019 DIGILAW 567 (UTT)

Jagdish Chandra Pathak v. State of Uttarakhand

2019-11-07

R.C.KHULBE

body2019
JUDGMENT : R.C. Khulbe, J. The applicant has filed the present application under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter to be referred as 'Cr.P.C') for quashing the impugned orders dated 19.10.2019, 24.10.2019 & 04.11.2019 passed by the Judicial Magistrate Almora District Almora in Criminal Complaint Case No. 84 of 2008, Judicial Magistrate Ranikhet vs. J.C. Pathak, pending in the court of Judicial Magistrate Almora. 2. Facts, to the limited extent necessary, are that the aforesaid complaint case is pending before the Civil Judge/Judicial Magistrate, Almora under Section 29 of Police Act, when the matter was fixed for recording the evidence of complainant on 19.10.2019, an application was moved by the learned counsel on behalf of the complainant that the complainant will himself cross-examine to the accused; he may be given an adjournment. 3. Since the complainant was absent, the said application was rejected on the very same day and accordingly the evidence of complainant was closed and the matter was fixed for 24.10.2019 for recording the statement under Section 313 Cr.P.C. On 24.10.2019 again an adjournment application was moved on behalf of the accused that the accused is not able to appear before the court due to medical reason. The said adjournment application was also rejected by the concerned court on the very same day and the matter was listed on 31.10.2019, on that day the matter was adjourned by the court and ultimately the case was fixed on 04.11.2019 for recording the statement under Section 313 Cr.P.C., again on 04.11.2019 an adjournment application was moved on behalf of the accused, which was also rejected on the very same day and the matter has been fixed on 11.11.2019 for recording the statement under Section 313 Cr.P.C. 4. Aggrieved by these orders, the present application has been filed under Section 482 Cr.P.C. for quashing the aforesaid orders. 5. Heard learned counsel for the parties. 6. It is argued by learned counsel for the applicant that the accused was suffering from "Lumbego" and as per the advice of the Doctor the accused was directed to take rest for four weeks from 23.10.2019. In this regard medical certificate was also produced before the concerned Magistrate, but the concerned Magistrate did not notice this fact and simply turned down the request made by the accused and accordingly, rejected the adjournment application. 7. In this regard medical certificate was also produced before the concerned Magistrate, but the concerned Magistrate did not notice this fact and simply turned down the request made by the accused and accordingly, rejected the adjournment application. 7. While the accused has a right to cross-examine the prosecution witnesses, his valuable right has been turned down by the concerned Magistrate. A true and fair trial is sine qua non of Article 21 of the Constitution, which declares that no person shall be deprived of his "life" or "personal liberty" except according to the procedure established by law. It needs no emphasis that a criminal trial, which may result in depriving a person of not only his personal liberty but also his life has to be unbiased, and without any prejudice for or against the accused. An impartial and uninfluenced trial is the fundamental requirement of a fair trial, the first and the foremost imperative of the criminal justice delivery system. If a criminal trial is not free and fair, the criminal justice system would undoubtedly be at stake, eroding the confidence of a common man in the system, which would not augur well for the society at large. 8. At this stage, it is requested by the learned counsel for the applicant that he may be given one more opportunity, so that the accused may cross-examine with the complainant as well as his witnesses. 9. From the perusal of the record, it is clear that the accused was suffering from "Lumbego" and as per the advice of the Doctor the accused was directed to take rest for four weeks from 23.10.2019. The ground, shown in the adjournment application was sufficient to adjourn the matter, but the concerned court did not consider it and simply rejected the said application, which was illegal. 10. Since the accused is ready to cross examine with the complainant as well as his witnesses, hence, one more opportunity must be given to the accused, in the interest of justice. 11. In these circumstances, the present application filed under Section 482 Cr.P.C. is finally disposed of and orders dated 19.10.2019, 24.10.2019 & 04.11.2019 passed by the Judicial Magistrate Almora District Almora in Criminal Case No. 84 of 2008, Judicial Magistrate Ranikhet vs. J.C. Pathak, are hereby set aside and the applicant is directed to appear before the concerned court on 10.12.2019. In these circumstances, the present application filed under Section 482 Cr.P.C. is finally disposed of and orders dated 19.10.2019, 24.10.2019 & 04.11.2019 passed by the Judicial Magistrate Almora District Almora in Criminal Case No. 84 of 2008, Judicial Magistrate Ranikhet vs. J.C. Pathak, are hereby set aside and the applicant is directed to appear before the concerned court on 10.12.2019. On that day, the accused will cross-examine with the complainant as well as his witnesses, as per law. 12. Pending applications, if any, stand disposed of.