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2024 DIGILAW 436 (UTT)

Pulkit Arya v. State of Uttarakhand

2024-06-25

RAVINDRA MAITHANI

body2024
JUDGMENT : Ravindra Maithani, J. The challenge in this revision is made to the order dated 03.05.2024, passed in Sessions Trial No. 1 of 2023, State Vs. Pulkit Arya and others, by the court of Additional Sessions Judge, Kotdwar, District Pauri Garhwal (“the trial”). By it, an application filed by the revisionist to further cross examine PW 23 has been rejected. 2. Heard learned counsel for the parties and perused the record. 3. In the trial, an application bearing No. 351B was presented by the revisionist, seeking further cross examination of PW 23. This application has been rejected by the impugned order. This application reads as follows:- “Madam The above noted case is fixed for today, however on dated 7.10.2023, part of cross examination was done in this Hon’ble Court of P.W. 23, further an application was decided U/s 39 Evidence Act which was further presented to Hon’ble High Court. In the light of the order passed by the Hon’ble High Court on dated 26.02.2024, the opportunity to further cross examine P.W.23 stands open for defence. It is therefore being prayed that the Hon’ble Court in the light of abovesaid may kindly summon P.W.23 Pushpdeep Baboria for further cross-examination on the next date in the interest of justice. Dated – 26/04/24 Counsel for Presented by” 4. The court below held that on 07.10.2023, the cross examination of PW 23 had already been done and on that date, no application was given by the defence that cross examination of PW23 is pending. The impugned order also observed that this Court has not given any opportunity to further cross examine PW23. 5. The record reveals that during investigation of the case, data from the mobile phone of PW23 was retrieved and sent to Forensic Science Laboratory for examination. It appears that entire chat was given to the revisionist. The impugned order also observed that this Court has not given any opportunity to further cross examine PW23. 5. The record reveals that during investigation of the case, data from the mobile phone of PW23 was retrieved and sent to Forensic Science Laboratory for examination. It appears that entire chat was given to the revisionist. Before PW23 could be examined, an application was moved on behalf of the Special Public Prosecutor with the following request:- “It is therefore, more respectfully prayed that as the whatsapp chat has voluminous data and it is evident according to the INDIAN EVIDENCE ACT 1872 that evidence can only be given of the facts in issue and relevant facts hence in the light of this defence counsel must be barred to cross examine the PW 23 on those whatsapp chats which was prior to the joining date of the deceased in the alleged hotel because it hit by section 39 of the INDIAN EVIDENCE Act 1872 and also infringes the article 21 The Constitution of India right to privacy of PW 23 and dignity of the deceased. Such other orders be also passed as deemed fit and proper in facts and circumstances of the case in the interest of justice.” 6. After hearing the parties, by the order dated 07.10.2023, the Court observed that as per prosecution the WhatsApp chats from the date, the deceased joined the resort till her death, are relevant and any chat prior to the deceased joining the resort would be volalative of the privacy of the deceased. The Court further observed that it would be justified and as per law, if the defence ask question on the relevant and related chats of the deceased and the witnesses. The Court also observed that as and when the defence will cross-examine the witness, the relevancy of the question would examine and the prosecution may then raise objection, which may be decided accordingly.” 7. That order dated 07.10.2023 was further challenged by the revisionist in Criminal Revision No. 800 of 2023, Pulkit Arya Vs. State of Uttarakhand (“the revision”) before this Court which was decided by this Court on 26.02.2024, in paras 12, 13 & 14, this Court observed as follows:- “12. In the impugned order dated 07.10.2023, in fact, the court has not passed any such restrictive order to the revisionist for not asking any question. State of Uttarakhand (“the revision”) before this Court which was decided by this Court on 26.02.2024, in paras 12, 13 & 14, this Court observed as follows:- “12. In the impugned order dated 07.10.2023, in fact, the court has not passed any such restrictive order to the revisionist for not asking any question. The court has made certain observations to the effect as to asking of which question may be justified and as per law. The court observed that only such question would be justified and as per law, which relates to the chats between deceased and P.W.23, which are related and relevant to the case. 13. The court further observed that in cross examination such question may not be asked, which are not permitted to be asked under the Act and thereafter, the court observed that as and when questions are asked, the prosecution may object to it and accordingly, they shall be decided then. A complete reading of the impugned order makes abundantly clear that the court had not passed any restrictive order barring the revisionist from asking any question. Of course, the court made an observation that only such question may be permitted to be asked as are permissible under the Act. If such observation is made, it does not make the impugned order bad in the eyes of law. The court has also made an observation that which question would be justified and as per law that may be asked during cross-examination, but that is an observation alone. The final order of the court in a nutshell is at page 3 (top paragraph), which says that relevancy of question may be determined when the question is asked. If any objection is raised by the prosecution, that may be decided then. 14. In view of the above discussions, this Court is of the view that there is no illegality in the impugned order, which may warrant any interference by this Court. Accordingly, the revision deserves to be dismissed.” 8. Learned counsel appearing for the revisionist would submit that the prosecution had no occasion to move any application under Section 39 of the Indian Evidence Act, 1872 (“the Evidence Act”) prior to cross examination of PW23. He would submit that in its order dated 07.10.2023, the trial court has defined contours within which cross examination could have been done. Learned counsel appearing for the revisionist would submit that the prosecution had no occasion to move any application under Section 39 of the Indian Evidence Act, 1872 (“the Evidence Act”) prior to cross examination of PW23. He would submit that in its order dated 07.10.2023, the trial court has defined contours within which cross examination could have been done. Therefore, the cross examination has then been restricted by the court’s order. The revisionist proceeded with the cross examination. It is argued that the order dated 07.10.2023 passed in the case has been clarified by this Court in the revision on 26.02.2024. Therefore, the revisionist moved another application for further cross examination of PW23, which has been rejected. It is argued that the revisionist should get fair opportunity to cross examine PW 23. Initially, on 07.10.2023, the revisionist has no liberty to cross examined PW23 due to the order passed on that date restricting the area of cross examination. 9. Learned State counsel would submit that the order dated 07.10.2023, passed in the case was challenged in the revision, but that order has been upheld by this Court. After order dated 07.10.2023, passed in the case, the cross examination of PW23 has been completed. Therefore, at the strength of this Court’s order dated 26.02.2024, passed in the revision, the revisionist cannot avail any opportunity to cross examine PW23. 10. It is true that an application under Section 39 of the Evidence Act was moved by the prosecution before examination of PW23. On that application, an order was passed on 07.10.2023. 11. This Court need not further discuss the order dated 07.10.2023 passed in the case. This order dated 07.10.2023 passed in the case was put to challenge in the revision, which was dismissed and the order dated 07.10.2023 has been upheld. 12. This Court did not find any wrong in the Court’s order dated 07.10.2023 passed in the case and in paras 12, 13 and 14, as quoted hereinbefore, in fact, the Court has only made observation while examining the correctness of the order dated 07.10.2023 and observed that if any observation is made by the Court in its order dated 07.10.2023, “it does not make the impugned order bad in the eyes of law”. 13. After the Court’s order dated 07.10.2023, it is admitted that PW23 had already been cross examined on the same date. 14. 13. After the Court’s order dated 07.10.2023, it is admitted that PW23 had already been cross examined on the same date. 14. In the application for further examination of PW23 the revisionist has stated that “in the light of order passed by the High Court on dated 26.02.2024, the opportunity to further cross examine PW23 stands open for evidence.” This is not correct. This Court has not opened any opportunity of cross examination of PW23 by the defence, by its order dated 26.02.2024. 15. Therefore, this Court is of the view that the impugned order does not warrant any interference. Accordingly, the revision deserves to be dismissed. 16. The revision is dismissed accordingly.