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2020 DIGILAW 216 (UTT)

ANSHUL GUPTA v. STATE OF UTTARAKHAND

2020-03-17

RAVINDRA MAITHANI

body2020
JUDGMENT Hon'ble Ravindra Maithani, J. Challenge in this petition is the order dated 07.06.18 passed in Complaint Case No. 3593 of 2014, Tony Kashyap Vs. Anshul Gupta, passed by the court of Additional Chief Judicial Magistrate, Roorkee, District Haridwar (for short ‘the case') as well as the judgment and order dated 14.02.20 passed in Criminal Revision No.359 of 2018, Anshul Gupta Vs. State and Another, by the court of First Additional District Judge, Roorkee (for short ‘the revision'). 2. By the impugned order dated 07.06.18 passed in the case, an application filed under section 311 of the Code of Criminal Procedure (for short ‘the Code'), for cross-examination of the complainant, has been dismissed. This impugned order dated 07.06.18 has further been confirmed on 14.02.20 in the revision. 3. Facts, necessary to resolve the controversy, briefly stated, are as hereunder:- Respondent no.2 (complainant) filed an application under section 138 of The Negotiable Instruments Act, 1881 (for short ‘the Act'). Cognizance was taken on 21.01.13 and the petitioner was summoned under section 138 of the Act. The case proceeded. Various dates were fixed. In evidence, complainant was examined as a witness and dates were fixed for his cross-examination. It is the petitioner, who sought adjournments, which were allowed. Last time, it was allowed on 08.09.2016, as a last opportunity with Rs.300 costs. On 16.11.2016, though petitioner was present, but the complainant was not examined on his behalf and 17.11.2016 was fixed in the case. 4. Again on 17.11.16, petitioner was present but the complainant was not examined on his behalf. In fact, no application was moved on 17.11.16 on behalf of the petitioner for seeking adjournment. Court closed the opportunity of cross-examination. Thereafter, an application was moved by the petitioner seeking recall of the order dated 17.11.2016. This application was rejected on 07.02.17 by the detailed order passed in the case. Subsequently, the case was fixed for examination of the petitioner under section 313 of the Code. Petitioner kept on seeking adjournments. On 17.04.17 and 09.05.17, adjournments were allowed and date fixed for examination under section 313 of the Code. Again when adjournment was sought on 15.06.2017 court rejected it and Non Bailable Warrants were issued against the petitioner. The petitioner was arrested but again on 09.01.18, he was released on bail and the case was fixed for recording of the statement of the petitioner under section 313 of the Code. 5. Again when adjournment was sought on 15.06.2017 court rejected it and Non Bailable Warrants were issued against the petitioner. The petitioner was arrested but again on 09.01.18, he was released on bail and the case was fixed for recording of the statement of the petitioner under section 313 of the Code. 5. On 20.01.2018, examination under section 313 of the Code was recorded and the case was fixed for defence evidence on 25.01.2018. No evidence was adduced on behalf of the petitioner and the case was fixed for argument. Finally on 21.02.2018, again petitioner moved an application for adjournment, but, the court rejected the adjournment application, heard arguments and fixed 26.02.18 for judgment. It is on 26.02.18, an application under section 311 of the Code was again moved by the petitioner seeking permission to cross-examine the complainant. It is this application which was rejected by the impugned order dated 07.06.2018. This order was further confirmed on 14.02.2020 in the revision. These orders are impugned, herein. 6. Learned counsel for the petitioner would submit that on 17.11.2016, petitioner was present in the court. His counsel did not appear to cross-examine the complainant. Petitioner cannot be held responsible for it and he should be provided one opportunity to cross-examine the witness. It is argued that to ensure fair trial, petitioner ought to have been given opportunity to cross-examine. In support of his contention, learned counsel placed reliance on a judgment in the case of Sunder Lal Vs. Urmila Thakur, (Cr. Revision No. 313 of 2017) decided by Himachal Pradesh High Court. That was the case where complainant was required to be further cross-examined by the accused and application to that effect, given under section 313 of the Code, was rejected. The Hon'ble High Court allowed the application. It was also observed that “trial is main object of criminal jurisprudence and it is duty of court to ensure such fairness is not hampered or threatened in any manner. It has been further held in the aforesaid judgments that fair trial entails interests of accused, victim and society and therefore, grant of fair and proper opportunities to the persons concerned, must be ensured being a constitution goal, as well as a human right. It has been further held in the aforesaid judgments that fair trial entails interests of accused, victim and society and therefore, grant of fair and proper opportunities to the persons concerned, must be ensured being a constitution goal, as well as a human right. Hon'ble Court has categorically held in the aforesaid judgment that adducing evidence in support of the defence is a valuable right and denial of such right would amount to denial of a fair trial. In that case, Hon'ble High Court has referred to the principles, as laid down by the Hon'ble Supreme Court in various cases. 7. Principles underlying under section 311 of the Code are to secure a fair trial to both, victim and accused. Its object is also to grant opportunity to the accused in order to prove his innocence and ensure fair trial. After all, trial is a journey for the search of truth. Needless to say, fair trial is one of the principles embodied, under Article 21 of the Constitution of India, but, then under the garb of fair trial, if an accused tries to protract the trial and does not allow it to proceed further, the court should strike a balance. 8. A litigant may not be permitted to keep on adjourning the case every time proclaiming that to ensure fair trial, he should be provided an opportunity. Speedy trial is also one of the essences of fair trial. It is also a part of right to life. The chronology of events which led to passing of the impugned order has been narrated hereinabove. This is a case under section 138 of the Act. The statute has also provided the time limit within which these cases should be concluded. Section 143 (3) mandates that all efforts shall be made to conclude the case within six months from the date of filing of the complaint. Section 143(3) of the Act is as hereunder:- “143. Power of court to try cases summarily.- ………………………….…………………….(3) Every trial under this section shall be conducted as expeditiously as possible and an endeavour shall be made to conclude the trial within six months from the date of filing of the complaint." 9. In the instant case, the petitioner since 2016 has been seeking adjournments to cross-examine the complainant. Power of court to try cases summarily.- ………………………….…………………….(3) Every trial under this section shall be conducted as expeditiously as possible and an endeavour shall be made to conclude the trial within six months from the date of filing of the complaint." 9. In the instant case, the petitioner since 2016 has been seeking adjournments to cross-examine the complainant. The opportunity, which was closed on 17.11.2016 and when an application to recall this application was filed, it was also rejected and the case fixed for statement of the petitioner under section 313 of the Code. Successive adjournment applications were moved thereafter by the petitioner on 17.04.2017, 09.05.2017 and 15.06.2017. On 15.06.2017, warrants were issued against him. He was arrested and his bail was granted on 09.01.2018. The statement of the petitioner under Section 313 of the Code was recorded. As stated, he again tried to delay the trial by filing adjournment application, till it was rejected on 21.02.2018. 10. It is true that an accused has every right to cross-examine the witness examined in the case, but then what the court and statute could do if an accused does not avail the opportunity to cross-examine the witness. If some person is not in a position to take legal assistant, the court may on State expenses provide legal assistant. But, instant is not such a case. In the instant case, despite all opportunities, it is the petitioner, who did not avail the opportunity to cross-examine the complainant. He has been delaying the trial. He cannot be permitted to protract the trial in the name of fair trial. He has been provided all the attributes of fair trial. He did not avail it. He remained absent thereafter. At every stage, he tried to protract the trial. 11. This Court is of the view that in the instant case, the court below rightly rejected the application of the petitioner. Therefore, no interference is warranted in the matter. Accordingly the instant petition under section 482 of the Code deserves to be dismissed. 12. The petition is dismissed.