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2025 Supreme(Online)(RAJ) 456
HIGH COURT OF RAJASTHAN (JAIPUR BENCH)
JUSTICE ANOOP KUMAR DHAND, J
BANWARILAL KUMAWAT S/O SHRI AMARCHAND – Appellant
Versus
STATE OF RAJASTHAN – Respondent
CRLMP / 8314 / 2024
Mr. Mukesh Kumar Saini, Mr. Vivek Choudhary, PP
The right to cross-examine witnesses is fundamental to a fair trial, and courts must ensure this right is upheld to avoid depriving the accused of justice.
Headnote:(A) POCSO Act, 2012 - Section 33(5) - Criminal Procedure Code, 1973 - Section 311 - Right to cross-examine - The petitioner sought to recall the victim for cross-examination after the opportunity was closed due to counsel's refusal to engage in cross-examination during the trial. The court emphasized the necessity of cross-examination for a fair trial and quashed the lower court's order denying this right. (Paras 3, 7, 8)
(B) Fair Trial - The court reiterated that the accused has a fundamental right to conduct a fair trial, which includes the right to cross-examine witnesses essential for just decision-making. (Paras 7, 8)
Facts of the case:
The petitioner challenged the order of the Special Judge rejecting the application to recall the victim for cross-examination, arguing that the counsel's refusal to cross-examine was due to limited engagement for bail purposes.
Findings of Court:
The court found that the right to cross-examine the victim was essential and not granted, rendering the lower court's order unsustainable.
Issues: The main issue was whether the petitioner was denied the right to cross-examine the victim, impacting the fairness of the trial.
Ratio Decidendi: The court held that the right to cross-examine is fundamental to a fair trial, and the trial court has a duty to ensure this right is upheld.
Result: The petition was allowed, and the lower court's order was quashed.
| Table of Content |
|---|
| 1. challenged order of special judge (Para 1) |
| 2. counsel for the petitioner submits (Para 3 , 5) |
| 3. perusal of the record indicates (Para 6 , 7) |
| 4. cross-examination of the prosecutrix (Para 8) |
| 5. the instant criminal misc. petition stands allowed (Para 9 , 10 , 11) |
Order
13/01/2025
1. Aggrieved by the order dated 04.04.2023 passed by the Special Judge, POCSO Act, 2012, Jaipur District, the instant petition has been preferred.
2. By passing the order impugned, the learned Judge has rejected the application filed by the petitioner under Section 311 Cr.P.C. for recalling the victim for the purpose of cross- examination.
3. Counsel for the petitioner submits that the petitioner is in custody and when the statements of prosecutrix were recorded before the Trial Court on 07.01.2023, counsel refused to cross-examine the prosecutrix only on the count that he was engaged only for the purpose of filing the bail application. Counsel submits that on refusal of the counsel appearing for the petitioner, his opportunity of cross- examination was closed. Counsel submits that the petitioner was directed to submit the list of proposed questions to be asked from the prosecutrix. When the petitioner failed to submit the list of the aforesaid questions/ suggestions, the order impugned has been passed, by which his right of cross- examination has been closed. Counsel submits that the petitioner was not supposed to submit the list of the questions to be put to the prosecutrix for the purpose of cross- examination. Counsel submits that the petitioner remained unrepresented, hence, under these circumstances, the Trial Court was under a legal obligation to engage counsel/ amicus curiae on behalf of the petitioner from the Legal Aid Services Authority, but instead of doing so, the order impugned has been passed. Counsel submits that the Trial Court has failed to discharge its duties, therefore, interference of this Court is warranted. In support of his contentions, he has placed reliance upon the following judgments:
1. Angad @ Rinku vs. State of Rajasthan (DB Criminal (Jail) Appeal No.242/2023) passed by the Division Bench of this Court on 25.11.2024.
2. Khushwant @ Kushwant Jat vs. State of Rajasthan (S.B. Criminal Appeal No380/2027) passed by the Co-ordinate Bench of this Court on 17.12.2019.
3. Pidika Sambaru vs. State of Odisha and Anr. (CRL REV No.490/2021) passed by the Orissa High Court on 04.03.2022.
4. Mohammad Ali Akbar @ Ali Umar vs. State of Karnataka (Criminal Petition No.4449/2022) passed by the Karnataka High Court on 06.06.2022.
5. Vinod Rawat Vs. State (Crl. M. C. 4584/2022) passed by the Delhi High Court on 20.09.2022.
Counsel submits that under these circumstances, a last opportunity be granted to the petitioner to cross-examine the prosecutrix on the next date.
4. Per contra, learned Public Prosecutor opposed the prayer and submitted that in-spite of granting opportunity of cross- examination by the Trial Court to the petitioner, he failed to cross-examine her, hence, under these circumstances, no option was there with the Trial Court to close his opportunity to cross-examine, hence, under these circumstances, interference of this Court is warranted.
5. Heard and considered the submissions made at Bar and perused the material available on the record.
6. Perusal of the record indicates that when the examination-in-chief of the prosecutrix was recorded on 07.01.2023, the counsel appearing on behalf of the petitioner refused to cross-examine the aforesaid witness on the pretext that he was engaged only for the purpose of filing bail application.
7. It is true that as per the provisions contained under Section 33(5) of the POCSO Act, the Special Court shall ensure that the child be not called repeatedly to testify in the Court. The object behind incorporating the above provision
