The Delhi High Court recently comprising of a bench of Justice Swarana Kanta Sharma observed that Fair trial is a constitutional goal and a basic fundamental right of every individual and it demands giving an opportunity to an accused to defend himself. Moreover the court said there is a constitutional duty of every court to determine the truth and reach a correct and just decision to prevent miscarriage of justice on account of absence of fair opportunity to a party. (Vinod Rawat vs State)
Facts of the case.
The instant petition has been filed under Sections 482/402 Cr.P.C., 1973 read with Article 227 of Constitution of India for setting aside the impugned order passed by Sessions Judge wherein the learned ASJ dismissed the application under Section 311 Cr.P.C. for recalling the witnesses PW-1, Ms. “P” victim and PW-9 in FIR registered under Sections 376/506 of IPC and Section 6 POCSO Act.
Contention of the Parties
The learned counsel for petitioner stated that his plea for re- examination of PW-1 and PW-9 was declined on totally erroneous ground. To contest his case he argued that since the petitioner was in jail, he was able to obtain certified copy of testimony of PW-1 and PW- 9 on 22.09.2022. It is his case that the witnesses were not cross- examined by his counsel thereby, causing prejudice to him and that non-cross examination of these witnesses will affect the future outcome of the case.
The learned counsel for the petitioner further argued that the aim of every court is to discover the truth and in case his application under Section 311 Cr.P.C. is not allowed, grave injustice will be caused to the petitioner. He argued that there is dispute about the age of the victim and the case is not covered under the POCSO Act. It was therefore, prayed that the impugned order be set aside to reach just a decision of the case. To buttress his arguments the learned counsel for the petitioner has referred to two judgments titled as V.N. Patil v. K. Niranjan Kumar & Ors.(2021) 3 SCC 661 and Vijay Kumar v. State of UP & Anr. (2011) 8 SCC 136 which relate to the power of the court under Section 311 Cr.P.C.
The learned APP for the State has, however, stated that the witnesses have been cross-examined by the previous counsel and appointment of a new counsel cannot be a ground for re-cross examination of the witnesses. He further stated that the argument of the counsel for the petitioner is nothing but a ploy to further delay the matter. He also argued that the witnesses were cross-examined in detail in the presence of the accused himself. He also stated that PW-9 was tendered for cross-examination. However, the opportunity was not availed and therefore a conscious decision had been made by choosing not to cross-examine PW-9.
Courts Observation and Judgment
The bench observed, "the court has widest discretionary powers to summon, examine or recall and re-examine any person to find out the truth and arrive at a just and correct decision but the same has to be exercised judiciously and not arbitrarily."
The bench further observed, "A constitutional duty has been cast on every Court to determine the truth and reach a correct and just decision so that miscarriage of justice does not take place by failure of affording an opportunity in a fair manner to the concerned party. In case the evidence sought to be brought on record is essential to the issue involved, the powers under Section 311 Cr.P.C. must be invoked. A fair trial is a constitutional goal and basic fundamental right of every individual."
The bench disposing of the application remarked, "Therefore, the bar under Section 33(5) of POCSO Act has to be interpreted keeping in mind the facts of each case. In the present case, it is not the case of the prosecution that the witness has been repeatedly called for cross-examination. The application has been moved on the first available opportunity to the accused/applicant who was in judicial custody. Therefore, in this Court’s opinion this is a fit case where application under Section 311 Cr.P.C. be allowed with the following conditions:
a) That the PW-1 and PW-9 will be cross-examined in one single opportunity and on same day preferably.
b) No adjournment shall be sought by the counsel for the accused/applicant for cross-examination of the PW-1 and PW-9.
c) Cost of Rs. 5,000/- is imposed on the accused/applicant which will be deposited with Delhi High Court Advocates’ Welfare Fund within a period of two weeks from the date of receipt of this judgment."
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