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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
ARUN MONGA, J.
Prakash Chandra Soni S/o Lt. Sh. Ram Vilas Soni – Appellant
Versus
State of Rajasthan, through P.P. - Respondent
S.B. Criminal Misc(Pet.) No. 4873 of 2023
Decided on : 05-07-2024
RECALL - CROSS-EXAMINATION RIGHTS - Section 311, Section 231 of Cr.P.C. - The court discussed the provisions of Section 311 and Section 231 of the Criminal Procedure Code, emphasizing the necessity of allowing a party to cross-examine material witnesses to ensure a just decision. The court interpreted these sections to mean that the right to cross-examine should not be forfeited without just cause, particularly when the failure to do so was not the fault of the accused. This interpretation influenced the court's decision to quash the lower court's order and allow the petitioner another opportunity to cross-examine the witness.
Fact of the Case:
The petitioner challenged an order from the Special Judge that dismissed his application to recall a witness, Ghanshyam Soni, for cross-examination in a corruption case. The witness's examination-in-chief had been completed, but the cross-examination was interrupted due to the petitioner's counsel being engaged in another court, leading to the trial court closing the cross-examination prematurely.
Finding of the Court:
The court found that the trial court had not properly considered the implications of denying the petitioner the right to cross-examine a crucial witness. It noted that the petitioner had not previously sought adjournments and that the denial of cross-examination could prejudice the petitioner's defense.
Issues: Whether the trial court erred in denying the petitioner the opportunity to cross-examine a material witness, and whether the circumstances justified the forfeiture of this right.
Ratio Decidendi: The court held that the right to cross-examine a material witness is fundamental to a fair trial, and that the trial court's decision to deny this right was overly harsh and not justified by the circumstances, particularly since the petitioner had not caused the delay.
Final Decision: The petition was allowed, the order of the trial court was quashed, and the petitioner was granted one more opportunity to cross-examine the witness, subject to a deposit with Legal Aid Services.
ORDER :
ARUN MONGA, J.
1. The grievance of the petitioner herein is against an order dated 27.07.2023 passed by the learned Special Judge (Prevention of Corruption Act Cases) No.2, Jodhpur, in Sessions Case No.4/2021,, vide which, an application filed by the petitioner under Section 311 of Cr.P.C. to recall/re-summon a witness i.e. Ghanshyam Soni (PW/15), was dismissed.
2. Relevant facts of the case leading to filing the application under Section 311 ibid are as follows:
2.1 That an FIR bearing No.73/2010 was registered against Rajendra Sishodiya and others for the alleged offences punishable under Sections 7, 13(1) (d) of Prevention of Corruption Act, 1988, and 120-B of IPC at Police Station Anti Corruption Bureau, CPS, Jaipur on 06.04.2024. After filing of charge-sheet, learned trial court framed charges against the accused persons and the trial is going on.
2.1 The examination-in-chief of PW/15, Ghanshyam Soni, started on 27.11.2017 and concluded on 13.02.2019. Thereafter, the cross-examination of the said witness began on 19.11.2022. On the said date, cross-examination could not be completed as counsel for the petitioner was busy in an other court. However, the cross-examination was closed by order of the learned trial court.
2.2 Thereafter, an application under Section 311 read with Section 231 Cr.P.C. was filed on behalf of the petitioner before the learned trial court to recall the aforesaid witness for cross-examination. Vide impugned order dated 27.07.2023, the said application was rejected. Hence, this petition.
3. In the aforesaid backdrop, I have heard learned counsel for the petitioner as well as learned Public Prosecutor and have also gone through the case file.
4. The learned counsel for the petitioner argues on the lines of the grounds taken in the petition herein, urging that the learned trial court, while passing the impugned order, has not properly appreciated the provisions of Section 311 r/w 231 Cr.P.C. in the right perspective. It is a settled position of law that the necessity of recording the evidence of a person who is a material witness must be examined, coupled with the need for a just decision in the case. Therefore, in the absence of complete cross-examination of the witness, the correct factual position would not be available on the record. The petitioner has been illegally deprived of his legal right to cross-examine the material witness.
4.2 The Learned court below while passing the impugned order dated 27.07.2023 has not taken into consideration the number of opportunities given for recording the evidence of PW/15 Ghanshyam Soni. Whereas, not even one adjournment which was sought, due to circumstances beyond control was granted for cross examination of the said witness to the petitioner.
4.3 He urges that the learned court below has not taken into consideration the important aspect that PW/15 Ghanshyam Soni is one of the crucial material witnesses and has also been declared hostile by the learned Public Prosecutor. Therefore, his cross-examination is essential. Hence, the impugned order deserves to be set aside.
5. Learned P.P. defends the impugned order and states that no interference is warranted.
6. Having heard the learned counsels and on going through the contents of the petition and the grounds contained therein as well as on perusal of the impugned order, it transpires that the learned trial court below seems to have got over swayed with the mindset, that in case another opportunity is given to cross-examine, the same will delay the trial, which had commenced 10 years ago. Even though, the cross-examination could not be carried out without any fault of the petitioner (i.e. the accused), as his counsel was on his legs before another court at the same time, for which, short accommodation was sought.
7. Not only the learned trial court declined to accommodate the request but it is borne out that it was the first very opportunity granted to cross-examine the said witness. The petitioner had earlier on, n
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