Court No. - 50 Case :- CRIMINAL REVISION No. - 3091 of 2010 Petitioner :- Phool Chandra Dubey Respondent :- State Of U.P. & Ors. Petitioner Counsel :- Manish Tiwary,Ashwini Kumar Awasthi Respondent Counsel :- Govt. Advocate Hon'ble S.C. Agarwal,J.
Heard Sri Manish Tewari, learned counsel for the revisionist and
learned AGA for the State.
It is not necessary to issue notice to opposite party nos. 2 to 7.
The instant revision is preferred against the order dated 25.5.2010
passed by the A.S.J., Court No. 1, Bhadohi Gyanpur, District- Sant
Ravi Das Nagar in S.T. No. 22 of 1999 (State Vs. Vijay Shanker &
others), under Sections 302, 201, 147, 149, 120B IPC, P.S. Aurai
whereby the trial court refused to record the remaining evidence of
revisionist Phool Chandra Dubey (P.W.-1).
The facts as contained in the impugned order are that the
revisionist is the complainant in the Sessions Trial. His
examination-in-chief was recorded on 30.8.2005 but on
subsequent dates he did not appear for cross examination. On
24.11.2005, his cross examination was closed as he did not
appear and other witnesses were examined. On 26.4.2010 an
application 296 Kha was moved by the revisionist-complainant
before the trial court that his statement be recorded for just
decision of the case. The application was opposed by learned
counsel for the accused on the ground that the High Court in
Criminal Revision No. 1194 of 2010 filed by Phool Chandra Dubey,
complainant, set aside the order passed by the Sessions Court
dated 27.2.2010 closing the prosecution evidence and directed
one more opportunity be given to the revisionist to lead its
remaining evidence. The objection is that in pursuance of the order
passed by the High court, opportunity was given on 17.4.2010 and
there is no occasion for re-examination of P.W.-1.
The application 296 Kha was rejected by learned Sessions
Judge on the ground that in earlier revision, order dated 27.2.2006
was challenged by the complainant before the High Court but
order closing statement of P.W.-1 was never challenged.
The contention of learned counsel for the revisionist is that
examination-in-chief of P.W.-1- the complainant has already been
recorded by the court but he was not cross examined by the
defence as he did not appear on subsequent dates. The trial court
closed his cross examination. It was contended that P.W.-1 is
offering himself for cross examination and not for re-examination.
It is in the interest of justice that accused persons cross examine
P.W.-1 and accused persons have no right to decline the
opportunity of cross examination. Learned counsel further
submitted that it was a duty of the trial court to permit P.W.-1 to be
cross examined by the defence as in the absence of cross
examination, the defence would claim that the statement of P.W.-1
be not read against them as he was not cross examined and
defence did not get an opportunity to cross examine P.W.-1.
The other contention is that if P.W.-1 did not appear for cross
examination after he was examined in chief, his statement could
not be closed by the trial court. Trial court was duty bound to issue
coercive process against P.W.-1 to ensure his presence before the
Court for the purpose of cross examination and the statement of
the witness cannot be closed on the ground that he is not
attending the Court for cross examination.
I find sufficient force in the contention raised by the learned
counsel for the revisionist.
Once a witness has been examined in chief, it is duty of the
court to ensure that he is cross examined by the defence. The
defence must be provided an opportunity and cross examine the
witness. If the witness is not present in the Court, efforts must be
made to ensure his presence, so that, defence may not be
prejudiced. Here the case is reverse. Though earlier P.W.-1 did
not appear for cross examination, now he is ready to appear for
cross examination and defence is objecting to it. The trial court
also did not consider its duty to permit cross examination of P.W.-1
by defence counsel. The reasons appear to be obvious. The
defence does not wish to cross examine the witness and is
objecting to the cross examination on the ground that the evidence
of P.W.-1 has been closed but would claim during arguments that
the statement of P.W.-1 is not admissible against the accused as
opportunity for cross examination was not provided to the defence
to cross examine P.W.-1. Such a course of action could not be
permitted. When the witness is ready to be cross examined, the
trial court is bound to provide opportunity to the defence to cross
examine him. If the defence refuses to cross examine P.W.-1, then
it cannot claim subsequently that the defence was not provided an
opportunity for cross examination, but the Court cannot refuse to
permit cross examine of P.W.-1.
In these circumstances, the impugned order dated 25.5.2010
cannot be sustained and is quashed.
The revision is allowed. The learned trial court is directed to
permit cross examination of P.W.-1 by counsel for the accused on
production of certified copy of this order by the complainant. The
Court shall fix a date for cross examination of P.W.-1 and the
complainant is directed to be present on that date for cross
examination and he shall be cross examined by learned counsel
for the accused. If on the date fixed for cross examination, the
revisionist is not present before the trial court, the trial court shall
be at liberty to issue coercive process against him to ensure his
presence.
Order Date :- 9.8.2010
KU