While coming down heavily on the accused for indulging in dilatory tactics, the Gwalior Bench of the Madhya Pradesh High Court has in a most learned, laudable, landmark and latest judgment titled Shadab Ansari & Anr. v. State of Madhya Pradesh in Miscellaneous Criminal Case No. 47659 of 2022 that was pronounced as recently as on December 12, 2022, the Gwalior Bench of the Madhya Pradesh High Court has upheld the decision of the Trial Court to close the rights of the accused in POCSO case nothing that they were indulging in dilatory tactics to defer the minor prosecutrix from testifying. It must be mentioned here that while convincingly rejecting the application of the applicants/accused to grant them one last opportunity to cross-examine the prosecutrix, the Single Judge Bench of Hon’ble Mr Justice GS Ahluwalia after analyzing everything observed that their behavior before the lower court manifested an oblique motive to defeat the purpose of criminal trial. We thus see that the Gwalior Bench has commendably taken a zero tolerance approach towards those who indulge in such dilatory tactics and has made it clear that it won’t relent in front of such reprehensible tactics meant only to delay the criminal trial!
At the very outset, this brief, brilliant, bold and balanced judgment authored by a Single Judge Bench of the Gwalior Bench of the Madhya Pradesh High Court sets the ball in motion by first and foremost putting forth in para 1 that, “This application under Section 482 of CrPC has been filed against the order dated 23.10.2021 passed by Special Judge (POCSO Act), District Bhind in ATR No.41/2020, by which right of the applicants to cross-examine the prosecutrix has been closed.”
To put things in perspective, the Bench then envisages in para 2 that, “It is submitted by the counsel for the applicant that on 16.09.2021 the prosecutrix had appeared, but because of reference on account of death of an Advocate, she could not be examined. Thereafter, again she appeared on 09.10.2021, but counsel for the applicants was not ready to cross-examine her. Accordingly, case was adjourned with a stipulation that in case, if the counsel for the applicants does not cross-examine the prosecutrix on the next date of hearing, then the right of the applicant to cross-examine her shall be closed. Thereafter, it appears that on 23.10.2021 the prosecutrix appeared and her examination-in-chief was started at 12:00 PM. During recording of examination-in-chief of the prosecutrix, counsel for the applicants was present and the examination-in-chief was concluded by 12:20 PM, but Shri Neeraj Shrivastava, Advocate who was contesting the case on behalf of the applicants did not appear in spite of repeated instructions and associate counsel of Shri Neeraj Shrivastava was repeatedly insisting that the cross-examination shall be done by Shri Neeraj Shrivastava, Advocate only. At a later stage, associate counsel of Shri Neeraj Shrivastava once again appeared before the Trial Court and prayed for deferment of the cross-examination. However, no reason for the same was pointed out. Since the counsel for the applicants was not interested in cross-examining the prosecutrix, therefore, the Court closed the right of the applicants to cross-examine the prosecutrix by exercising powers under Section 309 of CrPC.”
On the one hand, the Bench then discloses in para 3 that, “Challenging the order passed by the Court below, it is submitted by the counsel for the applicants that Shri Neeraj Shrivastava had appeared before the Trial Court at 16:20 on 23.10.2021 and the closure of the rights of the applicants to cross-examine the prosecutrix would cause irreparable loss to them and, therefore, a last opportunity may be granted to cross-examine the prosecutrix.”
On the contrary, the Bench then reveals in para 4 that, “Per contra, the application is vehemently opposed by the counsel for the State. It is submitted that the prosecutrix is minor and the applicants were trying to create all sorts of hurdles, so that her evidence may not be recorded. The applicants cannot be permitted to hijack the Court proceedings. Whenever the prosecutrix appeared before the Trial Court, every attempt was made to avoid the recording of her evidence. This is against the concept of Section 33 of the Protection of Children from Sexual Offences Act, 2012 (in short “POCSO Act”) which regulates the procedure for examination of a juvenile. Section 35 of the POCSO Act provides that the evidence of the child shall be recorded within a period of 30 days of the Special Court taking cognizance of the offence and reasons for delay, if any, shall be recorded by the Sessions Court and the Sessions Court shall complete the trial as far as possible within a period of one year from the date of taking cognizance of the offence. The accused cannot be permitted to harass the minor prosecutrix by adopting delaying tactics. Unfortunately, in the present case, even the counsel for the applicants got himself involved in delaying tactics.”
Most significantly, the Bench then minces no words to make it indisputably clear in para 7 that, “If the counsel for the applicants was seeking adjournment on his own contrary to their instructions, then either they should have changed their counsel or they have a right to approach the Bar Council of Madhya Pradesh for professional misconduct of their counsel, but the minor prosecutrix cannot be allowed to be harassed by the accused persons by adopting such impermissible tactics.”
Be it noted, the Bench observes in para 11 that, “This Court in the case of Kuldeep Singh Tomar vs. State of M.P. passed in MCRC No. 5816/2018 by order dated 08/3/2018 has held as under:-
“Thus, it is clear that day to day proceedings in a Criminal Trial is a Rule and adjournment is an exception.””
Quite significantly, the Bench while citing the relevant case law points out in para 14 that, “The Supreme Court in the case of Krishnan Vs. Krishnaveni reported in (1997) 4 SCC 241 has held that the object behind the criminal law is to maintain law, public order, stability as also peace and progress in the society. The object of the criminal trial is to render public justice, to punish the criminal and to see that the trial is concluded expeditiously before the memory of the witness fades out. The Court further proceeded to state that the recent trend is to delay the trial and threaten the witness or to win over the witness by promise or inducement and these malpractices need to be curbed.”
Most tellingly, the Bench then while citing the most relevant case law states in para 15 that, “The Supreme Court in the case of Swaran Singh Vs. State of Punjab reported in (2000) 5 SCC 668 has held as under :
“36. … It has become more or less a fashion to have a criminal case adjourned again and again till the witness tires and gives up. It is the game of unscrupulous lawyers to get adjournments for one excuse or the other till a witness is won over or is tired. Not only is a witness threatened, he is abducted, he is maimed, he is done away with, or even bribed. There is no protection for him. In adjourning the matter without any valid cause a court unwittingly becomes party to miscarriage of justice.””
Quite forthrightly, the Bench then expounds in para 16 while citing the relevant case law that, “The Supreme Court in the case of Gurnaib Singh Vs. State of Punjab reported in (2013) 7 SCC 108 has held as under:
“35. We have expressed our anguish, agony and concern about the manner in which the trial has been conducted. We hope and trust that the trial courts shall keep in mind the statutory provisions and the interpretation placed by this Court and not be guided by their own thinking or should not become mute spectators when a trial is being conducted by allowing the control to the counsel for the parties. They have their roles to perform. They are required to monitor. They cannot abandon their responsibility. It should be borne in mind that the whole dispensation of criminal justice at the ground level rests on how a trial is conducted. It needs no special emphasis to state that dispensation of criminal justice is not only a concern of the Bench but has to be the concern of the Bar. The administration of justice reflects its purity when the Bench and the Bar perform their duties with utmost sincerity. An advocate cannot afford to bring any kind of disrespect to fairness of trial by taking recourse to subterfuges for procrastinating the same.””
Most forthrightly, the Bench then unambiguously holds in para 19 that, “Thus, when the prayer for deferring the cross-examination of a witness is made with an oblique motive to defeat the basic purposes of criminal trial, then if the right of the accused is closed for cross-examining such a witness, then only the accused or his counsel are responsible for creating such an unwarranted and unpleasant situation.”
It would be worthwhile to mention that the Bench then hastens to add in para 20 holding that, “Accordingly, looking to the conduct of the applicants and their counsel, this Court is of the considered opinion that no case is made out for interfering in the matter.”
Finally, the Bench then concludes by holding in para 21 that, “The application fails and is hereby dismissed.”
In conclusion, we thus see clearly that the Gwalior Bench of Madhya Pradesh High Court has most commendably upheld the closure of rights of co-accused to cross-examine the prosecutrix owing to their dilatory tactics. Of course, the zero tolerance that has been displayed for adopting dilatory tactics in this leading case must be always emulated in similar such cases so that the prosecutrix is saved from being unnecessarily harassed, humiliated and harangued which cannot be ever justified! No denying it!
Sanjeev Sirohi