The right to a fair trial includes the opportunity for cross-examination, but the defense must ensure its presence for such proceedings.

This application under Section 447 of BNSS, 2023 is submitted requesting for transfer of criminal case SCNDPS No. 13 of 2021 pending before Special Judge (NDPS Act) Bhanpura District Mandsaur to any other district.

It is requested in the application that applicant is facing trial at crime No. SCNDPS No. 13 of 2021 pending before Special Judge (NDPS Act) Bhanpura. Learned Special Judge rejected the application for examining the signature of Om Prakash (a witness in the matter) from handwriting expert. The applicant preferred petition before the High court which was allowed and handwriting expert report was directed to be called. Therefore, learned Special Judge was unhappy with the applicant and his counsel. In compliance with the order of High Court, handwriting expert report was produced and his statement was recorded through video conferencing.

Applicant requested for cross-examination of the witness after declaring him hostile. But learned Special Judge declined the permission and closed the trial. The matter was fixed for final argument in undue haste. The applicant was not given opportunity to cross examine the witness. Therefore, the trial of criminal case SCNDPS 13 of 2021 be transferred to any other Special Court.

Learned counsel for the applicant referring to copy of proceedings before the trial court submitted that on 12.11.2024, the handwriting expert was present for defence evidence to prove his report. But since the senior counsel could not remain present, the trial court was requested to adjourn the matter. But the trial Court instead of adjourning the matter, proceeded to record the evidence of handwriting expert Rakesh Rathore through video conferencing under Section 309 of Cr.P.C. The accused was not permitted to cross-examine the witness, thereby, the accused is deprived of his opportunity to establish defence. The accused, therefore, request for transfer of his case from concerned court to any other court, as he suspects that fair trial is not feasible in the concerned court.

Per contra, learned counsel for State, referred the proceedings of the trial court to contend that petition is meritless.

Heard both the parties. Perused the record.

The proceedings of trial court dated 12.11.2024 reveal that handwriting expert Rakesh Rathore was summoned as defence evidence at the instance of the accused. However, the counsel for accused was not present in the Court for examination of the witness. The witness was asked whether he can wait for evidence in the post-lunch session . The witness requested that his evidence may be recorded in the pre-lunch sessio n itself. Therefore, the trial court proceeded in compliance with the mandate of Section 309 of Cr.P.C. and recorded examination-in-chief of the witness and thereafter closed the defence evidence. There is no manifest illegality or impropriety in the procedure adopted by learned Special Judge, as the witness was summoned at the instance of defence. It was the duty of defence to remain present for examination of the witness. Still, the trial court recorded the evidence of witness with regard to the report submitted by him as handwriting expert. No serious prejudice appears to have caused to the applicant.

The petition sans merit is hereby dismissed