HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 36 Case :- APPLICATION U/S 482 No. - 19954 of 2011 Petitioner :- Budhpal Respondent :- State Of U.P. Petitioner Counsel :- Narendra Kr.Singh Yadav Respondent Counsel :- Govt.Advocate Hon'ble S.C. Agarwal,J.
Heard learned counsel for the applicant and learned AGA for the State.
This application under Section 482 Cr.P.C has been filed with a prayer to quash the orders dated 3.12.2010 and 19.1.2011 passed by Special Judge, E.C. Act, Shahjahanpur in S.T. No.89 of 2010 ( State Vs. Budhpal), under Section 302 IPC, Police Station Garhiya Rangeen, district Shahjahanpur.
By order dated 3.12.2010, the statement of P.W.1, Nanhi Devi was recorded by the trial court in the absence of accused applicant or his counsel and opportunity of cross examination was closed, subsequently on 19.1.2011, an application No.17 Kha moved on behalf of applicant for permission to cross examine the PW1 was also rejected.
Learned counsel submitted that on 3.12.2010, the applicant was not present in court. An application for exemption was moved on his behalf by his counsel, but his counsel also could not appear in the court. The trial court, in the absence of the applicant or his counsel, recorded statement of P.W.1 Nanhi Devi which was illegal. Further the right of cross examination was also closed without any basis, subsequently when the applicant moved an application for permission to cross examine of PW1, the said application was rejected. The contention is that in a heinous case under Section 302 IPC, the witnesses had to be cross examined by defence and their right of cross examination cannot be taken away lightly.
It is evident from the record that on 3.12.2010, neither the accused applicant Budhpal was present nor his counsel was present, in such situation, the trial court could have rejected the application for exemption from the personal appearance and also could have issued arrest warrant against him but in the absence of applicant or his counsel, the evidence could not have been recorded.
Section 273 of the Code of Criminal Procedure, 1973 provides as under:-
"273 Evidence to be taken in presence of accused.- Except as otherwise expressly provided, all evidence taken in the course of the trial or other proceeding shall be taken in the presence of the accused or, when his personal attendance is dispensed with, in the presence of his pleader.
Explanation.- In this section " accused" " includes a person in relation to whom any proceeding under Chapter VIII has been commenced under this Code."
It is obvious that evidence has to be recorded in the presence of the accused or his counsel. Evidence cannot be recorded behind the back of the accused, and therefore, the trial court was not justified in recording the statement of PW1 in the absence of applicant or his counsel. Subsequently, when an application no. 17 Kha was moved on behalf of applicant for permission to cross examine PW1, the same should have been allowed by the trial court. Refusing permission to cross examine PW1 in a murder case virtually amounts to denial of justice. Perhaps the trial court forgot that no body should be condemned unheard. In a case under Section 302 IPC, where even death sentence can be awarded to the accused, the opportunity of cross examination cannot be taken away merely on technicality more so when the trial court itself recorded the statement of witness behind the back of the accused.
In view of the above, in my opinion, Court orders dated 3.12.2010 and 19.1.2011 passed by the learned Additional Sessions Judge/ Special Judge, E.C. Act, Shahjahanpur are not only illegal but seriously infringed the right to personal liberty of the applicant.
The application is allowed.
The impugned orders dated 3.12.2010 and 19.1.2011 are set aside. Since the statement of PW1 was recorded behind the back of the applicant, the same cannot be termed as evidence and is a waste paper. PW1 has to be examined again in the presence of accused or his counsel, and thereafter, the trial court shall provide an opportunity to the applicant for cross examination.
However, it is made clear that no unnecessary adjournment shall be granted to the applicant for cross examination of the witness.
Order Date :- 1.7.2011 SFH