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2024 DIGILAW 574 (UTT)

Amarjeet Singh Marwah v. State of Uttarakhand

2024-08-28

RAVINDRA MAITHANI

body2024
JUDGMENT : Ravindra Maithani, J. The challenge in this revision is made to the judgment and order dated 18.07.2024, passed in Criminal Case No.3667 of 2022, by the court of Additional Chief Judicial Magistrate, Haldwani, District Nainital (“the case”). By it, an application filed by the revisionist for cross-examination of PW1 Smt. Harjeet Kaur, has been rejected. 2. Heard learned counsel for the parties and perused the record. 3. The case is based on chargesheet submitted against the revisionist under Sections 452 and 506 IPC, which is based on the FIR lodged by PW1, Harjeet Kaur. In the case, on 25.05.2024, date was fixed for prosecution evidence. On that date, PW1, Harjeet Kaur, was present but the revisionist was not personally present. He was also not represented. The Court invoking the provisions of Section 309(2)(c) of the Code of Criminal Procedure, 1973 (“”the Code”) proceeded to record the statement of PW1, Harjeet Kaur, and also recorded that the revisionist shall not have no opportunity to cross examine the PW1, Harjeet Kaur. Thereafter, an application under Section 311 of the Code was filed by the revisionist seeking permission to cross-examine PW1, Harjeet Kaur. It has been rejected by the impugned order. 4. Learned counsel for the revisionist would submit that on 25.05.2024, he could not appear before the court and his counsel also did not appear. He remained unrepresented in the case on that date. In his absence, the statement of PW1, Harjeet Kaur, has been recorded. It is argued that if PW1, Harjeet Kaur, the informant of the case is not cross-examined, it will prejudice the interest of the revisionist and her cross-examination is necessary for the just decision of the case. He would submit that under Section 273 of the Code, evidence is to be recorded in the presence of the accused, except as provided in the court. It is argued that this situation arises only if the accused is absconding and the evidence is ordered to be recorded in the absence of the accused under Section 299 of the Code. 5. Learned State Counsel would submit that on 25.05.2024, neither the revisionist appeared, nor was he represented. Therefore, the Court proceeded to examine PW1, Harjeet Kaur. 6. A principle of fair trial is paramount. Section 273 of the Code provides that evidence is to be taken in the presence of the accused. It reads as follows:- “273. 5. Learned State Counsel would submit that on 25.05.2024, neither the revisionist appeared, nor was he represented. Therefore, the Court proceeded to examine PW1, Harjeet Kaur. 6. A principle of fair trial is paramount. Section 273 of the Code provides that evidence is to be taken in the presence of the accused. It reads as follows:- “273. Evidence to be taken in presence of accused.—Except as otherwise expressly provided, all evidence taken in the course of the trial or other proceeding shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in the presence of his pleader: Provided that where the evidence of a woman below the age of eighteen years who is alleged to have been subjected to rape or any other sexual offence, is to be recorded, the court may take appropriate measures to ensure that such woman is not confronted by the accused while at the same time ensuring the right of cross-examination of the accused. Explanation.—In this section, “accused” includes a person in relation to whom any proceeding under Chapter VIII has been commenced under this Code.” 7. Section 299 provides for a situation when evidence may be recorded in the absence of the accused, but Section 309(2)(c) of the Code also makes provisions for recording of evidence when an accused is not present. This Section reads as follows:- Section 309(2)(c) of the Code:- “309. Power to postpone or adjourn proceedings.—(1) ……………………………………. (2) If the Court, after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody: Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time: Provided further that when witnesses are in attendance, no adjournment or postponement shall be granted, without examining them, except for special reasons to be recorded in writing: Provided also that no adjournment shall be granted for the purpose only of enabling the accused person to show cause against the sentence proposed to be imposed on him. Provided also that— (a) ………………………………… (b) ………………………………… (c) where a witness is present in Court but a party or his pleader is not present or the party or his pleader though present in Court, is not ready to examine or cross-examine the witness, the Court may, if thinks fit, record the statement of the witness and pass such orders as it thinks fit dispensing with the examination-in-chief or cross-examination of the witness, as the case may be. Explanation 1.—If sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence, and it appears likely that further evidence may be obtained by a remand, this is a reasonable cause for a remand. Explanation 2.—The terms on which an adjournment or postponement may be granted include, in appropriate cases, the payment of costs by the prosecution or the accused.” 8. It is the case of the revisionist that on 25.05.2024, the revisionist could not appear because he had gone to visit his daughter in Ludhiana, Punjab, where he fell sick. On the subsequent date, when he appeared, he also produced the medical certificates, but it has not been taken into consideration. 9. The proposition of law with regard to the recording of the evidence in the absence of the accused may not be doubted. But then, the scope of Section 311 of the Code is also quite distinct, which reads as follows:- “311. Power to summon material witness, or examine person present.—Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case.” 10. A bare reading of Section 311 of the Code makes it abundantly clear that any witness may be recalled for re-examination, etc., if his evidence appears to be essential for the just decision of the case. 11. In the instant case, the revisionist could not be represented on 25.05.2024. As stated, it is the case of the revisionist that due to illness, he could not appear on that date and he remained unrepresented. 11. In the instant case, the revisionist could not be represented on 25.05.2024. As stated, it is the case of the revisionist that due to illness, he could not appear on that date and he remained unrepresented. The statement of PW1, Harjeet Kaur, was recorded on that date. She is the informant. The chargesheet has been filed under Sections 452 and 506 IPC. 12. Learned counsel for the revisionist would submit that the revisionist and the informant both are family members. 13. Having considered, this Court is of the view that, in fact, the cross-examination of PW1, Harjeet Kaur, is essential for the just decision of the case under the facts and circumstances of the instant case. Therefore, the revisionist ought to have been given an opportunity to cross examine PW1, Harjeet Kaur. Accordingly, this Court is of the view that the impugned order is liable to be set aside and the revision deserves to be allowed. 14. The impugned order is set aside. The revision is allowed. 15. The revisionist shall have an opportunity to cross examine PW1, Harjeet Kaur, on any date, as may be fixed by the court below.