NEUTRAL CITATION
R/SCR.A/14961/2023 ORDER DATED: 09/11/2023
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 14961 of 2023
==========================================================
BECHARBHAI BHAILALBHAI PATEL
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR APURVA R KAPADIA(5012) for the Applicant(s) No. 1,2,3,4,5,6,7
PUBLIC PROSECUTOR for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 09/11/2023
ORAL ORDER
Rule. Learned APP waives service for the Respondent.
1. By way of this petition, the petitioners has challenged the judgment and order dated 11.10.2023, passed by the learned Chief Judicial Magistrate, Narmada at Rajpipla, in application below Exhibit-216 in Criminal Case No. 2605 of 2010, whereby, the learned CJM rejected the request of the petitioners to permit him to cross-examine prosecution witness No.18- Vasudevbhai Bhalabhai Bharwad.
2. The present petitioners are accused in Criminal Case No. 2605 of 2010, wherein, PW-18, who was an FSL Officer, was examined by the prosecution. The petitioners filed application Exhibit-216 to permit them to cross-examine PW-18, since, their right to cross-examine PW-18 was closed by the learned CJM for the reason that the learned Advocate for the Page 1 of 4 Downloaded on : Fri Nov 10 21:00:53 IST 2023 NEUTRAL CITATION R/SCR.A/14961/2023 ORDER DATED: 09/11/2023 undefined petitioners was, though, present, he refused to cross-examine PW-18 on the very same day.
2.1 After hearing the parties, the learned CJM rejected the application Exhibit-216 inter alia on the ground that, at earlier point of time, a similar application filed by the accused was allowed with the costs and despite that PW-18 was not cross- examined. It was also observed that the matter is of the year 2010 and the concerned witness, i.e. PW-18, has retired from the service. By assigning the aforesaid reasons, application Exhibit-216 was rejected by the learned CJM.
3. Learned Advocate Mr. Kapadia appearing for the petitioners submitted that non-granting of permission to the accused to cross-examine PW-18 would prejudice their defence. It was further stated that the petitioners are ready and willing to bear the costs that may be directed by this Court, if the permission to cross-examine PW-18 is granted.
4. Heard. This Court finds no infirmity in the impugned order dated 11.10.2023 passed by the learned CJM, while rejecting the application Exhibit-216. This Court also deprecates the approach on the part of the learned Advocate for the accused not to cross-examine the PW-18 on the date, when he was present or even on the subsequent date, when the learned CJM had allowed the application filed by the petitioners to cross-examine PW-18 on earlier occasion, but, with costs. The adamant approach is oozing out from the petitioners' side. There cannot be any denial that the case against the Page 2 of 4 Downloaded on : Fri Nov 10 21:00:53 IST 2023 NEUTRAL CITATION R/SCR.A/14961/2023 ORDER DATED: 09/11/2023 undefined petitioners is 13 years old as on today. There is a policy to decide the cases, which are more than 5 years old, on expeditious basis. However, what can come to the rescue of the present petitioners if the principle of 'Fair Trial'. An accused, who is facing accusation, must be given sufficient opportunity to cross-examine the witnesses and to explain the case against him, even by permitting him to put questions to the prosecution witnesses. No doubt, in the present case the petitioners failed to cross-examine PW-18, though, opportunity was given. Nonetheless, whether it was due to the fault of the petitioners or the fault on the part of the learned Advocate representing them before the learned CJM, the same may prove prejudicial to their defence and therefore, this Court has to take into consideration the principle of fair trial and in exercise of the powers under Section 482 of the Code of Criminal Procedure, 1973, it would be in the interest of the justice to permit the petitioners to cross-examine PW-18, of course, with some costs, which shall include the costs to be paid to PW-18 for attending the proceedings.
4.1 As recorded herein above, learned Advocate Mr. Kapadia did not dispute the aspect of costs and submitted that the petitioners are ready and willing to deposit the costs.
4.2 In the peculiar fact and circumstances of this case, even learned APP also submitted that the petitioners should be given one last opportunity to cross-examine PW-18.
5. For the foregoing reasons, this petition is allowed and Page 3 of 4 Downloaded on : Fri Nov 10 21:00:53 IST 2023 NEUTRAL CITATION R/SCR.A/14961/2023 ORDER DATED: 09/11/2023 undefined the impugned order dated 11.10.2023, passed by the learned Chief Judicial Magistrate, Narmada at Rajpipla, in application below Exhibit-216 in Criminal Case No. 2605 of 2010, is set aside, though there is no error, only on the principle of fair trial. The petitioners shall be given the opportunity to cross- examine PW-18, subject to their depositing Rs.5,000/- with the District Legal Services Authority, Narmada at Rajpipla, and further expenses, which shall be borne by PW-18 for attending the proceedings. Upon the compliance of the aforesaid conditions, the learned CJM shall issue witness summons to PW-18. It is, hereby, clarified that the date on which PW-18 remains present, he shall be cross-examined by the petitioners, without fail.
5.1 It is needless to say that since the case is of the year 2010, both the parties shall cooperate in expeditious hearing of the same. Rule is made absolute, accordingly. Direct service is permitted.
(J. C. DOSHI,J) UMESH/-
Page 4 of 4 Downloaded on : Fri Nov 10 21:00:53 IST 2023