Ganesh Verma vs State Of Chhattisgarh
2023 Latest Caselaw 336 Chatt

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                                                                 AFR
             HIGH COURT OF CHHATTISGARH, BILASPUR
                       Cr.M.P No.102 of 2023


Ganesh Verma S/o Saddhu Verma Aged About 22 Years R/o Paujni
Chowki    Lawan, Police Station Kasdol, District : Balodabazar-
Bhathapara, Chhattisgarh                          ---- Petitioner
                               Versus
1. State Of Chhattisgarh Through- Station House Officer, Police
   Chowki Lawan, Police Station Kasdol, District : Balodabazar-
   Bhathapara, Chhattisgarh
2. Xyz Nil                                        ---- Respondents

For Petitioner: Shri Satyaprakash Verma, Advocate. For Respondent No.1/State :Smt M. Asha, PL.

Hon'ble Shri Justice Deepak Kumar Tiwari Order on Board

17.01.2023

1. This Petition has been filed under Section 482 Cr.P.C against

the order dated 06.01.2023 passed by the Additional Sessions Judge,

FTSC (POCSO Act), Baloda Bazar, District Balodabazar-Bhatapara in

Special Criminal Case No.92/2022, whereby the application filed by

the Petitioner under Section 311 Cr.P.C for recalling the witness i.e.

the victim and her mother for cross-examination, has been dismissed.

2. Brief facts of the case are that the Petitioner is being

prosecuted for the offence under Sections 363, 366-A and 376 IPC as

also under Sections 4 & 6 of the POCSO Act, 2012 (for short 'the Act

of 2012'). On 30.11.2022, the trial Court has recorded the statement

of the prosecutrix and her mother on which date, another Counsel

namely Mr. SP Bharadwaj informed the Court that the arguing

Counsel Shri SP. Verma has gone for attending proceedings being

held at the High court, therefore, the cross-examination of the

prosecutrix and her mother could not be done and prayed for another

date for carrying out the same by stating that the Petitioner is ready to

bear the travelling and other expenses of the witnesses. The Court

below asked the Counsel appearing on behalf of Shri SP Verma to

take note of Section 33(5) of the Act of 2012 wherein, it is mandate by

the law that a Special Court shall ensure that the child is not called

repeatedly to testify in the Court. Even after the insistence of the

Court below for cross-examination of the said witness, Mr Bharadwaj,

who was appearing on behalf of Shri SP Verma before the Court

below, was not ready to cross-examine the said witness and

continued to seek adjournment. In those circumstances, the trial

Court has rejected the said application and closed the right of cross-

examination. Hence this Petition.

3. Shri Verma, learned Counsel for the Petitioner submits that the

order impugned is bad in law, perverse and erroneous as the original

Counsel was busy on the date of hearing due to some professional

reasons of being engaged in the proceedings of Criminal Appeals

No.1234/2016, 1047/2013, 460/2015, 1149/2013 and 86/2014,

therefore, cross-examination of the said witnesses could not be

conducted and submits that at least one opportunity may be given

even with an imposition of cost to safeguard the interest of the

Petitioner.

4. Upon requesting the assistance of Senior Advocate Shri Prafull

Bharat along with Advocate Shri Manish Sharma, who are present in

the Court, they also put forward their view that at least one

opportunity should be given to the Petitioner in the interest of justice

because the party should not suffer at the fault of the Counsel.

5. Heard learned Counsel for the parties and perused the

documents annexed with the Petition carefully.

6. It is well settled that no adjournment shall be granted for the

fact that the pleader of the party is engaged in another Court and that

shall not be a ground for adjournment. Order 17 of Code of Civil

Procedure, 1908 specifically enacted to the effect that where a

witness is present in Court but a party or his pleader is not present or

the party or his pleader, though present in Court, is not ready to

examine or cross-examine the witness, the Court may, if it thinks fit,

record the statement of the witness and pass such orders as it thinks

fit dispensing with the examination-in-chief or cross-examination of

the witness, as the case may be, by the party or his pleader not

present or not ready as aforesaid. Even in the Code of Criminal

Procedure, 1973 by way of Amendment, by Act 5 of 2009 (w.e.f.

01.11.2010, the said provision was inserted that normally no

adjournment shall be granted except where the circumstances are

beyond the control of that party. For the sake of brevity, the said

provision is reproduced as under:-

"(a) no adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of that party;

(b) the fact that the pleader of a party is engaged in another Court, shall not be a ground for adjournment;

(c) where a witness is present in Court but a party or his pleader is not present or the party or his pleader though present in Court, is not ready to examine or cross-examine the witness, the Court may, if thinks fit, record the statement of the witness and pass such orders as it thinks fit dispensing with the examination-in-chief or cross- examination of the witness, as the case may be."

7. In the matter of Zahira Habibullah Sheikh (5) vs. State of

Gujarat reported in (2006) 3 SCC 374, the concept was considered

underlying under Section 311, which is as under:-

"27. The object underlying Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the court to summon a witness under the section merely because the evidence supports the case of the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquiries and trials under the Code and

empowers the Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311 the significant expression that occurs is "at any stage of any inquiry or trial or other proceeding under this Code". It is, however, to be borne in mind that whereas the section confers a very wide power on the court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind."

8. In the matter of State (NCT of Delhi) vs. Shiv Kumar Yadav and

Another reported in (2016) 2 SCC 402, it has been held that

"....certainly, recall could be permitted if essential for the just

decision, but not on such consideration as has been adopted in the

present case. Mere observation that recall was necessary "for

ensuring fair trial" is not enough unless there are tangible reasons to

show how the fair trial suffered without recall. Recall is not a matter

of course and the discretion given to the court has to be exercised

judiciously to prevent failure of justice and not arbitrarily. While the

party is even permitted to correct its bona fide error and may be

entitled to further opportunity even when such opportunity may be

sought without any fault on the part of the opposite party, plea for

recall for advancing justice has to be bona fide and has to be

balanced carefully with other relevant considerations including

uncalled for hardship to the witnesses and uncalled for delay in the

trial. Having regard to these considerations, we do not find any

ground to justify the recall of witnesses already examined."

9. In Vinod Kumar Vs. state of Punjab reported in (2015) 3 SCC

220, the trial Court had dealt with the issue of unwarranted

adjournments sought by the Counsel conducting the trial and the

unfathomable reasons for acceptation of such prayers for

adjournments by the trial Courts, despite a statutory command under

Section 309 Cr.P.C and series of pronouncements by the Apex Court

and has issued a direction that it is imperative that if the examination-

in-chief is over, the cross-examination should be completed on the

same day. If the cross-examination of witness continues till late

hours, the trial can be adjourned for the next day for cross-

examination and the direction issued in the said judgment is relevant

in the present context, which reads as under:-

"57.1 Adjournments are sought on the drop of a hat by the counsel, even though the witness is present in court, contrary to all principles of holding a trial. That apart, after the examination-in-chief of a witness is over, adjournment is sought for cross-examination and the disquieting feature is that the trial courts grant time. The law requires special reasons to be recorded for grant of time but the same is not taken note of. 57.2 As has been noticed earlier, in the instant case the cross-examination has taken place after a year and 8 months allowing ample time to pressurize the witness and to gain over him by adopting all kinds of tactics.

57.3 There is no cavil over the proposition that there has to be a fair and proper trial but the duty of the court while conducting the trial is to be guided by the mandate of the law, the conceptual fairness and above all

bearing in mind its sacrosanct duty to arrive at the truth on the basis of the material brought on record. If an accused for his benefit takes the trial on the path of total mockery, it cannot be countenanced. The court has a sacred duty to see that the trial is conducted as per law. If adjournments are granted in this manner it would tantamount to violation of the rule of law and eventually turn such trials to a farce. It is legally impermissible and jurisprudentially abominable. The trial courts are expected in law to follow the command of the procedure relating to trial and not yield to the request of the counsel to grant adjournment for non-acceptable reasons.

57.4 In fact, it is not at all appreciable to call a witness for cross-examination after such a long span of time. It is imperative if the examination-in-chief is over, the cross-examination should be completed on the same day. If the examination of a witness continues till late hours the trial can be adjourned to the next day for cross-examination. It is inconceivable in law that the cross-examination should be deferred for such a long time. It is anathema to the concept of proper and fair trial.

57.5 The duty of the court is to see that not only the interest of the accused as per law is protected but also the societal and collective interest is safeguarded. It is distressing to note that despite series of judgments of this Court, the habit of granting adjournment, really an ailment, continues. How long shall we say, "Awake! Arise!". There is a constant discomfort. Therefore, we think it appropriate that the copies of the judgment be sent to the learned Chief Justices of all the High Courts for circulating the same among the learned trial Judges with a command to follow the principles relating to trial in a

requisite manner and not to defer the cross-examination of a witness at their pleasure or at the leisure of the defence counsel, for it eventually makes the trial an apology for trial and compels the whole society to suffer chicanery. Let it be remembered that law cannot allowed to be lonely; a destitute."

10. It is well settled that the parties cannot suffer for the fault of the

Counsel. On the other hand, the Counsel has not paid proper

attention to the seriousness of the mandate of the law. The

Advocates are the back bone of the system and cross-examination is

a fundamental tool to elicit the truth. It is also well settled that

Advocate's profession is governed by settled higher ethical norms to

the advance of justice and with the help of lawyers, the Court can

discharge the duty of upholding the rule of law. The ground has been

taken by the Counsel that he was busy in another Court and could

not properly instruct the other Counsel for representing him and he

did not seek an adjustment from the concerned trial Court due to

which, the said Court failed to inform the witnesses well in time. This

is not a case of unavoidable circumstances, which is beyond the

control of the party as the recall for advance of justice has to be bona

fide. In the instant case, the Petitioner is charged for the offence

under the POCSO Act, which mandates that a child victim should not

be called repeatedly to testify in the Court, therefore, considering the

striking balance that a Counsel must take appropriate steps that he

responds to the mandate of law and not seek adjournment on the

grounds which are not permissible to defeat the interest of justice,

this Court finds it appropriate to afford an opportunity for cross-

examination of the prosecutrix and her mother with an imposition of

cost of Rs.6,000/- which shall be deposited within a period of 3 weeks

from today before the concerned trial Court and upon depositing the

said cost, the trial Court shall ensure the process for recording the

evidence of the aforesaid witnesses i.e. the prosecutrix and her

mother. If the Petitioner fails to deposit the aforesaid cost within the

stipulated period, then this order shall lose its efficacy and no further

opportunity for cross-examination shall be permitted. After cross-

examination of the witness, the aforesaid amount deposited shall be

disbursed to them equally in the presence of the concerned Presiding

Officer.

11. With the aforesaid observation, the instant Petition stands

disposed of. However, the observation made hereinabove is not to

be taken against the Counsel engaged in the present case and the

Bar Council has to take a future course of action for issuing

appropriate circulars to strengthen the judicial system in a better way.

12. A copy of this order be circulated to the all the Courts below and

learned Counsel for the State is directed to circulate the same among

all the prosecutors through Director, Prosecution and a copy be also

sent to the State Bar Council for taking appropriate steps at their own

end.

13. This Court expresses its gratitude towards the assistance

rendered by Senior Advocate Shri Prafull Bharat and Shri Maneesh

Sharma, Advocate.

Sd/-

(Deepak Kumar Tiwari) Judge Priya