Allahabad High Court
Dabbu Singh Parihar vs State Of U.P. And Anr. on 4 August, 2017
Bench: Karuna Nand Bajpayee
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Court No. - 43
Case :- APPLICATION U/S 482 No. - 33382 of 2015
Applicant :- Dabbu Singh Parihar
Opposite Party :- State Of U.P. And Anr.
Counsel for Applicant :- Deenanath Mishra
Counsel for Opposite Party :- G.A.
Hon'ble Karuna Nand Bajpayee,J.
This application under Section 482 Cr.P.C. has been filed seeking the quashing of impugned orders dated 6.7.2015, 10.9.2015 as well as order dated 26.9.2015 in S.T. No.32 of 2014, u/s 302 I.P.C. and 3(2)V SC/ST Act, P.S. Ghatampur, district Kanpur Dehat (State Vs. Dabbu Singh Parihar and it is also prayed to direct the court below to re-examine the witnesses P.W.2 and P.W.3 of the case which is pending before the court of Special Judge SC/ST Act, Kanpur Dehat.
Heard learned counsel for the applicant and learned AGA. Perused the record.
Submission of counsel for the applicant is that this matter relates to grievous category of offences and therefore, the punishment liability of the accused may also be of extreme nature. It was pointed out by the counsel that two important prosecution witnesses have gone uncross-examined as the request to get the matter adjourned was refused by the trial court. It is further submitted that ordinarily the trite principle of criminal jurisprudence is that the testimony which has not been tested should be rejected. This principle is of course subject to the facts and circumstances of each individual case and it has to be seen that whether the accused was given an adequate opportunity to cross examine the witness or not. If the conduct of the accused shows that deliberately the opportunity was not availed by him and on frivolous reasons the right of cross examination was not availed of by him for no justifiable cause then the court has all the rights to close the opportunity. But the counsel has tried to show that the opportunity of cross examination of both the witnesses i.e. P.W.2 and P.W.3 was closed, on the very first request of adjournment sought on behalf of accused. It is not a case according to the applicant's counsel in which repeated adjournments were given or where the conduct of counsel was such to show that there was a deliberate attempt to procrastinate the matter and delay the proceedings. Submission is that the deprivation of opportunity of cross examination would go to the roots of the very concept of fair trial and which shall be to the prejudice of the right of accused to defend himself, and may occasion in actual failure of justice. Counsel has tried to show circumstances under which the prosecution witnesses could not be examined on the first date by the counsel.
Ordinarily this court would have issued notices to the opposite party before deciding the matter. But it has been made to appear that the case has already proceeded much far and has reached its terminal stage and therefore, if the course of issuing notice would be adopted, then the lower court proceeding would have to be stayed. Such course would be detrimental in the interest of both the sides and particularly to the prosecution side. Moreover as the issue involved in the matter relates to the principles of natural justice as well as the fundamentals of criminal jurisprudence of trial, therefore, this court deems it proper to decide this matter at this very stage without allowing this application to hang on for an indefinite period of time.
This application was moved on behalf of accused in the year 2015 and in the intervening period since then the matter was also released by another Bench of this court and it is only today that this application is being taken up after fresh nomination to this Bench. Thus even the counsel is not in a position to apprise the court about the present or current stage of trial about which he has no instructions .
After considering all the aspects of the case and the circumstances even though this court is not in a position to say that the trial court did not have a right to close the cross examination or that the impugned orders have been passed illegally but sometimes the ends of justice have different requirements to be addressed by this Court. It is not a matter of petty offences and the stakes of accused are indeed very high. The criminal liability which may be imposed on accused may also be of the extreme nature. What right can be more important for accused than the right to screen the truthfulness of a witness' testimony through the process of cross examination whereby alone his testimony may be impeached. If the conduct of the counsel of being not up to the mark or of being not so diligent, will be dealt with by the courts with so much severity then the axe of casualty shall always fall on the accused and upon his very valuable legal rights. The ends of justice sometimes require a liberal approach on humanitarian grounds in order to strike a balance between social defence and the defence of an accused who is facing the charge of having acted against the society.
In the facts and circumstances of the case, this court is of considered view that though the first opportunity of cross examination which ought to have been availed has not been availed by the counsel for no very sound reasons but this is also certainly not the case in which it may be said that deliberately many attempts to delay the trial were made on behalf of accused. It is also not a case in which multiple opportunities of cross examination were allowed to go waste and were not availed of. Therefore, in such peculiar facts and circumstances it is found expedient and proper to direct that the applicant should be provided the opportunity to move fresh application before the trial court to summon the P.W.2 and P.W.3 for their cross examination. If such application is moved before the trial court within two weeks from now, the same shall be decided by the court in the light of the observations made in this order.
It may be clarified that as the counsel has not been able to aprise the court about the stage of the trial, therefore, it may be observed that if the trial has already been decided then this order would have no consequence and it shall be ignored.
It is further made clear that if after recalling the aforesaid two witnesses they appear before the court then on the first day of their appearance the cross examination must be done on behalf of accused and no further adjournment in that regard shall be sought or granted. If the opportunity of cross-examination remains unavailed on the first date of witnesses appearance then the court shall have the liberty to close the evidence and proceed further in accordance with law.
The application is allowed in aforesaid terms.
Dt. 4.8.2017/RKB
