Delhi High Court
Om Prakash @ Fufa Ji vs State (Govt Of Nct Of Delhi) on 16 June, 2017
$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 16th June, 2017
+ CRL.A. 153/2016 and Crl.M.A.2464/2016
OM PRAKASH @ FUFA JI ..... Appellant
Through: Mr. D.S. Paweriya, Advocate
along with appellant produced
from JC
versus
STATE (GOVT OF NCT OF DELHI) ..... Respondent
Through: Mr. Tarang Srivastava, APP for
the State with W/SI Shivali, PS
Bharat Nagar.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. The appeal at hand brings a challenge to the judgment dated
03.11.2015, followed by order dated 05.11.2015, of the court of
Additional Sessions Judge-01, North-West, Rohini, Delhi in Sessions
case no.166/2013 whereby the appellant was held guilty and convicted
for offence under Section 10 of the Protection of Children from Sexual
Offences Act, 2012 (POCSO Act) and awarded sentence of rigorous
imprisonment for five years with fine of Rs.5,000/-, with further
simple imprisonment for six months for default in payment of fine.
The Sessions case, it may be mentioned here itself, was registered on
the basis of report under Section 173 of the Code of Criminal
Procedure, 1973 (Cr.P.C.) which had been submitted by the
investigating office on conclusion of investigation into First
Information Report (FIR) No.194/2013 of Police Station Bharat Nagar
registered on 25.07.2013 for investigation of offences punishable
under Sections 363/376/511 of the Indian Penal Code, 1860 (IPC) and
Sections 8, 10 and 12 of POCSO Act. It may further be mentioned
here that though the trial was held on the basis of charges famed on
07.02.2014, inter alia, for offences punishable under Sections
363/354/506 IPC besides under Section 9 (m) read with Section 10 of
POCSO Act, by the impugned judgment the trial court did not return
any finding, for reasons not indicated, qua the other charges, i.e., the
offences punishable under Sections 363/354/506 IPC. This may not
have been proper approach and rather is reflective of process being
unnecessary hurried.
2. The appellant claims to be innocent and falsely implicated. He
has raised a number of contentions in defence, some over and above
the arguments which were repelled by the trial court by the impugned
judgment. One of his contentions, however, stands out, it concerning
demands of fair trial procedure. It is this contention which, as the
following discussion would show, must be accepted resulting in the
impugned judgment and order on sentence being vacated and the
matter being remanded to the trial court for further proceedings, as
directed hereinafter, and afresh adjudication.
3. It is trite that investigating police officer is an important witness
for the prosecution, also from the perspective of defence. A person
facing criminal charge is entitled to demonstrate, inter alia, by cross
examination of the investigating police officer to show that the
investigation was not fair or suffers from lapses which may have
caused prejudice to the defence.
4. The investigating officer of this case, W/SI Shashi Lata (PW-
10) was examined at the end, as is the usual practice, on 24.04.2015.
The record would show that the opportunity to cross examine the said
very important witness was given but not availed. It is the submission
of the learned counsel for the appellant, he also having been counsel
for him at the trial, that on 24.04.2015 when PW-10, the investigating
officer, was examined, the Bar Association of Rohini Courts had
called for a strike and, therefore, he along with other Advocates were
not allowed to enter the court premises. His submission to this effect
is confirmed by the proceedings recorded by the trial court on
24.04.2015. Both the deposition sheet containing the evidence
(examination in chief of PW-10) as also the corresponding order sheet
dated 24.04.2015 records the presence of the appellant as accused
produced from judicial custody with "a proxy counsel appointed by
the bar".
5. Apparently, the proxy counsel nominated by the Bar
Association had no authority nor the necessary brief to conduct the
proceedings. It is inherent in the said proceedings that the Bar
Association had actually taken over the affairs in the courts at Rohini
on that date and its proxies were representing the Advocates who had
been engaged by the litigants thereby disallowing the latter from
appearing.
6. The anxiety on the part of the learned trial Judge to proceed
with the recording of evidence for which the witness had also come up
in attendance, and not wasting the precious judicial time, is very well
understood and appreciated. But, this would not mean that the rights
of the accused to fair trial procedure, particularly his right to cross-
examine the witness of such great import, could or should have been
sacrificed at the altar of expeditious proceedings. Possibly after
recording the chief-examination of PW-10, the matter could have been
adjourned for the next date so that counsel engaged by the appellant to
defend him could have discharged his responsibility by cross-
examining the witness. Closing the right of cross-examination by
giving an opportunity to the proxy appointed by the Bar Association
appears to be compliance with the procedure more in form than in
substance. This cannot be accepted.
7. In the above facts and circumstances, while the net result having
been found to be vitiated on account of denial of important right of the
accused to cross-examine the investigating officer, it must be added
that this case could possibly go down in the history as one such case
where the strike by the Bar Association has resulted in denial of
justice. It is hoped the Bar Associations would have a re-think on the
mode and forum of lodging protests in a manner other the stalling the
judicial process in the courts of which they are an important limb.
8. For the foregoing reasons, the impugned judgment and order on
sentence are set aside. The case is remanded to the trial court for fresh
adjudication after recalling W/SI Shashi Lata (PW-10), the
investigating officer, and giving an opportunity to the appellant
(accused) for her cross-examination. Needless to add, after the said
exercise has been concluded, the statement of the appellant under
Section 313 Cr.P.C. will have to be recorded again, followed by
further opportunity for him to lead additional evidence in defence, if
any.
9. For removal of doubts, it is clarified that the defence has not
sought, and shall not be permitted to move, for recall of any witnesses
for cross examination other than W/SI Shashi Lata (PW-10).
10. Further, it is hoped and expected that the trial court will render
the fresh judgment not being influence or feeling bound by the view
taken in the judgment which has been set aside in this appeal.
11. The learned counsel for the appellant has pointed out from the
trial court record that the appellant was released on bail during the
pendency of the trial and that he was taken in custody after he had
been held guilty and convicted by judgment dated 03.11.2015. This is
confirmed by the nominal roll.
12. In view of the result of the appeal at hand, in all fairness, the
liberty of release on bail should be restored to the appellant in terms of
the order passed during the pendency of the trial. The said bail order
is, thus, revived. The appellant will, however, furnish fresh bail bond
in its terms, to the satisfaction of the trial court (or Vacation Judge)
whereupon he shall stand released on bail, pending conclusion of trial.
He shall appear, or be produced from custody, as the case may be, for
further proceedings in above light, and in accordance with law, on
24.07.2017, before the trial court.
13. The trial court record shall be returned forthwith alongwith
copy of this judgement.
14. Dasti under the signatures of Court Master.
R.K.GAUBA, J.
JUNE 16, 2017
vk
