Allahabad High Court
Madan Kumar And 2 Others vs State Of U.P. And Another on 2 May, 2024
Author: Krishan Pahal
Bench: Krishan Pahal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:78953
Court No. - 76
Case :- CRIMINAL REVISION No. - 1072 of 2024
Revisionist :- Madan Kumar And 2 Others
Opposite Party :- State of U.P. and Another
Counsel for Revisionist :- Babu Lal Ram,Rachana Singh
Counsel for Opposite Party :- G.A.
Hon'ble Krishan Pahal,J.
1. List has been revised.
2. Heard Sri Babu Lal Ram, learned counsel for the revisionists and Sri Yogesh Mishra, learned A.G.A. for the State.
3. The instant criminal revision has been filed against the order of rejecting the adjournment application filed by the revisionists to adjourn the cross-examination of prosecution witness (PW-1) on 30.11.2023 passed by Additional District and Sessions Judge/F.T.C. (Criminal Against Women), Budaun in S.T. No.203 of 2022 (State vs. Madan Kumar and Other), under Sections 498A, 304B I.P.C. as a option 302/34 I.P.C. and 3/4 D.P. Act, Police Station Majariya, District Budaun.
4. Learned counsel for the revisionists has stated that the fundamental right of the revisionists and also the right provided in Indian Evidence Act stands violated as the revisionists have every right to cross-examine the witness. In the instant case, the maximum punishment is capital punishment, as such they may be accorded one more opportunity to cross-examine the witness.
5. Per contra, learned A.G.A. has opposed the instant criminal revision on the basis that the revisionists had got the cross-examination adjourned on one pretext or the other on several dates i.e. 30.06.2023, 21.10.2023, 7.11.2023 and on 21.10.2023. Learned A.G.A. has further stated that therevisionists have lost their right to cross-examine the said witness.
6. The Supreme Court in P. Sanjeeva Rao v. State of A.P., (2012) 7 SCC 56 has opined that:
"22. Discovery of the truth is the essential purpose of any trial or enquiry, observed a three-Judge Bench of this Court in Maria Margarida Sequeira Fernandes v. Erasmo Jack de Sequeira (2012) 5 SCC 370. A timely reminder of that solemn duty was given in the following words:
"35. What people expect is that the court should discharge its obligation to find out where in fact the truth lies. Right from inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying the existence of the courts of justice."
23. We are conscious of the fact that recall of the witnesses is being directed nearly four years after they were examined-in-chief about an incident that is nearly seven years old. Delay takes a heavy toll on the human memory apart from breeding cynicism about the efficacy of the judicial system to decide cases within a reasonably foreseeable time period. To that extent the apprehension expressed by Mr Raval, that the prosecution may suffer prejudice on account of a belated recall, may not be wholly without any basis. Having said that, we are of the opinion that on a parity of reasoning and looking to the consequences of denial of opportunity to cross-examine the witnesses, we would prefer to err in favour of the appellant getting an opportunity rather than protecting the prosecution against a possible prejudice at his cost. Fairness of the trial is a virtue that is sacrosanct in our judicial system and no price is too heavy to protect that virtue. A possible prejudice to the prosecution is not even a price, leave alone one that would justify denial of a fair opportunity to the accused to defend himself."
7. In Varsha Garg v. State of M.P., 2022 SCC OnLine SC 986 the Supreme Court has reiterated the said view and opined as follows:
"36. Summing up the position as it obtained from various decisions of this Court, namely Rameshwar Dayal v. State of U.P., (1978) 2 SCC 518, State of W.B. v. Tulsidas Mundhra, 1963 Supp (1) SCR 1, Jamatraj Kewalji Govani v. State of Maharashtra, (1967) 3 SCR 415, Masalti v. State of U.P., (1964) 8 SCR 133, Rajeswar Prosad Misra v. State of W.B., (1966) 1 SCR 178, and R.B. Mithani v. State of Maharashtra, (1971) 1 SCC 523, the Court held:
"27. The principle of law that emerges from the views expressed by this Court in the above decisions is that the criminal court has ample power to summon any person as a witness or recall and re-examine any such person even if the evidence on both sides is closed and the jurisdiction of the court must obviously be dictated by exigency of the situation, and fair play and good sense appear to be the only safe guides and that only the requirements of justice command the examination of any person which would depend on the facts and circumstances of each case."
37. The power of the court is not constrained by the closure of evidence. Therefore, it is amply clear from the above discussion that the broad powers under Section 311 are to be governed by the requirement of justice. The power must be exercised wherever the court finds that any evidence is essential for the just decision of the case. The statutory provision goes to emphasise that the court is not a hapless bystander in the derailment of justice. Quite to the contrary, the court has a vital role to discharge in ensuring that the cause of discovering truth as an aid in the realization of justice is manifest."
8. It is true that the act of the counsel on behalf of the revisionists cannot be appreciated, but in the interest of justice and fair adjudication it shall be proper to grant one last opportunity to him to cross-examine the said witness.
9. After hearing learned counsels for the parties and taking into consideration the aforesaid judgments of Supreme Court, the revisionists- Madan Kumar, Parmeshwari and Bhoo Devi are granted one last opportunity to cross-examine the prosecution witness no.1 by paying a cost of Rs.5,000/- with the court concerned and they shall not seek any adjournment of the said prosecution witness.
10. The instant revision is, accordingly, disposed off.
Order Date :- 2.5.2024
Ravi Kant
(Justice Krishan Pahal)
