Gujarat High Court
Gaurang Shantilal Thakkar vs State Of Gujarat on 11 October, 2021
Bench: Ilesh J. Vora
R/SCR.A/9928/2021 ORDER DATED: 11/10/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 9928 of 2021
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GAURANG SHANTILAL THAKKAR
Versus
STATE OF GUJARAT
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Appearance:
MR P P MAJMUDAR(5284) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MS SS PATHAK APP (2) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 11/10/2021
ORAL ORDER
1. By way of this petition, the applicant seeks to quash and set aside
the orders dated 27.7.2021 and 17.08.2021passed below Exh. 49
and 45 respectively in Criminal Misc. Application No. 381 of
2018.
2. Heard learned counsel Mr. PP Majmudar for the applicant.
3. The learned counsel for the applicant does not press for the relief to
quash and set aside the impugned order passed below Exh. 49
dated 27.07.2021.
4. The respondent no. 2 has filed maintenance application under
Section 125 of the Code of Criminal Procedure against the
applicant husband. Matter is pending before the Family Court,
Junagadh. On 17.08.2021, the applicant husband was not present
before the Court nor his advocate had attended the proceedings, as
R/SCR.A/9928/2021 ORDER DATED: 11/10/2021
a result of which, his right to cross examination of the applicant
was being closed and also closed his right to lead evidence by the
Family Court.
5. A bare perusal of the order passed below Exh. 45 would show that
the trial Court ought to have granted the reasonable opportunity to
the applicant to defend his case. It is settled law that right to cross-
examination is a statutory right and is one of the principle of the
natural justice that at least, an opportunity has to be given for
cross-examination.
6. Apex Court in case of Selvi J. Jaylalitha Vs. State of Karnataka,
(2014) 2 SCC 401, after referring its earlier judgment dealt with
the issue of fair trial, in paras 28 to 30, observed as under:
"Para-28 Fair trial is the main object of criminal procedure
and such fairness should not be hampered or threatened in
any manner. Fair trial entails the interests of the accused, the
victim and of the society. Thus, fair trial must be accorded to
every accused in the spirit of the right to life and personal
liberty and the accused must get a free and fair, just and
reasonable trial on the charge imputed in a criminal case.
Any breach or violation of public rights and duties adversely
affects the community as a whole and it becomes harmful to
the society in general. In all circumstances, the courts have a
duty to maintain public confidence in the administration of
justice and such duty is to vindicate and uphold the 'majesty
of the law' and the courts cannot turn a blind eye to
vexatious or oppressive conduct that occurs in relation to
criminal proceedings.
29. Denial of a fair trial is as much injustice to the accused
as is to the victim and the society. It necessarily requires a
trial before an impartial judge, a fair prosecutor and an
atmosphere of judicial calm. Since the object of the trial is to
mete out justice and to convict the guilty and protect the
R/SCR.A/9928/2021 ORDER DATED: 11/10/2021
innocent, the trial should be a search for the truth and not a
bout over technicalities and must be conducted under such
rules as will protect the innocent and punish the guilty.
Justice should not only be done but should be seem to have
been done. Therefore, free and fair trial is a sine qua non of
Article 21 of the Constitution. Right to get a fair trial is not
only a basic fundamental right but a human right also.
Therefore, any hindrance in a fair trial could be violative of
Article 14 of the Constitution.....
30. Article 12 of the Universal Declaration of Human Rights
provides for the right to a fair trial what is enshrined in
Article 21 of our Constitution. Therefore, fair trial is the
heart of criminal jurisprudence and, in a way, an important
facet of a democratic polity and is governed by rule of law.
Denial of fair trial is crucifixion of human rights."
7. In light of the aforesaid law laid down by the Apex Court and
considering the facts and circumstances of the present case, the
family Court clearly fell in error by passing the order. Hence, the
order passed Exh. 45 is not sustainable in law and is hereby
quashed and set aside.
8. The learned Family Court recall the respondent wife and directed
her to remain present on 26.10.2021 for cross-examination. The
applicant husband shall complete the cross-examination on the
same day. The applicant husband is directed to lead his oral
evidence on the very same day without asking any further
adjournment. The Family Court is directed to conclude the
proceedings on or before 29.10.2021.
9. With aforesaid direction, the petition is disposed of.
(ILESH J. VORA,J)
P.S. JOSHI
