Subhan Khan vs The State Of Jharkhand
2021 Latest Caselaw 2321 Jhar

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    IN THE HIGH COURT OF JHARKHAND AT RANCHI
                 Cr. Revision No.1238 of 2018

    Subhan Khan                                  ......      Petitioner

                             Versus
    1.   The State of Jharkhand
    2.   Parvati Devi                            .....   Opp. Parties
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CORAM: HON'BLE MR. JUSTICE RAJESH KUMAR

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    For the Petitioner       : Mr. Anil Kumar, Sr. Advocate
                              Ms. Chandana Kumari, Advocate
    For the State            : Mr. Shekhar Sinha, P.P
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         The matter was taken up through Video

Conferencing. Learned counsel for the parties had no objection with it and submitted that the audio and video qualities are good.

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               th
10/Dated: 13        July, 2021

1. The present revision application has been filed against the order dated 26.07.2018, passed in Misc. Criminal Application No.737 of 2018, arising out of Tatisilway P.S. Case No.43 of 2014, corresponding to G.R. No.2914 of 2014 (S.T. No.683 of 2014), whereby the court of learned A.J.C.-VI, Ranchi, has dismissed the prayer of the petitioner to recall the P.W.-3, Parvati Devi, P.W.-4, Rajesh Mahto, P.W.-5, Amarjit Goswami and P.W.-6, Pritam Mahto, for the purpose of cross- examination.

2. It has been submitted by the learned senior counsel for the petitioner that the aforesaid witnesses have been examined on 04.05.2017. The conducting lawyer in the court below was ill and as such, a petition has been filed on the same day, which has been taken note by the court below, but still the cross-examination of the prosecution witnesses, has not been deferred, as requested by the junior counsel for the petitioner, and the court below has rejected the application on the ground that this is a delaying tactics on the part of the defence counsel.

It has further been submitted by the learned senior counsel that the right of cross-examination is a valuable right to the victim and it cannot be snatched away in this manner specially without finding any fault on the part of the victim itself. For the said purpose, learned senior counsel has relied

upon the judgments of the Hon'ble Supreme Court of India in the case of Natasha Singh Vs. Central Bureau of Investigation (State) reported in (2013) 5 SCC 741, and in the case of State (NCT of Delhi) Vs. Shiv Kumar Yadav and Anr., reported in (2016) 2 SCC 402.

3. On the other hand, learned P.P, has submitted that in the court below, one of the junior counsel had stated that the arguing counsel is busy in another court and thereafter another counsel has filed the petition and it has also been argued that due to illness, the arguing defence counsel is not present and on the said ground deferment for the purpose of cross-examination has been sought for, which has been rejected by the court below.

4. Heard learned counsel for the parties and perused the lower court records. It appears that P.W.-3, Parvati Devi, is the informant. P.W.-4, Rajesh Mahto, is neither the witness of fact nor a formal witness and his deposition is irrelevant to the facts of the present case. P.W.-5, Amarjit Goswami, is a seizure list witness and witness to the seizure of empty cartridges from the house of the petitioner. P.W.-6, Pritam Mahto, is the son of the informant and eye witness to the incident.

It further appears that while conducting the trial and collecting the evidence the court below, in the above order dated 04.05.2017, while exercising the jurisdiction under Section 231 of the Cr.P.C, has refused to defer the cross- examination of witnesses on the ground that it is a delaying tactics of the defence counsel.

5. At this stage, learned senior counsel for the petitioner has confined his prayer to recall the P.Ws.-3, 5 & 6 only for the purpose of cross-examination.

From perusal of the judgments of the Hon'ble Supreme Court, referred by the learned senior counsel for the petitioner, relating to Sections 231 and 311 of the Cr.P.C. It is evident that wide discretion has been given to the conducting court for deferment of the witnesses for the purpose of cross- examination and also power to recall for collecting best evidence for arriving at the truth, this power has to be exercised for furtherance of the justice and finding truth and for fair trial.

It is also well settled law that any person cannot be punished for the fault of another person. If any fault lies on the part of the conducting lawyer, the accused cannot be punished for the same.

6. In the present case, it is not a case that regular adjournment is being sought for or there is fault on the part of the accused. Further, accused is still in jail.

In view of the above discussions and considering the evidence given by P.Ws.- 3, 5 & 6, the defence should be given an opportunity to cross-examining them. Accordingly, the impugned order dated 26.07.2018 is, hereby, set aside and the trial court is mandated to allow the defence to cross- examine P.W.-3, Parvati Devi, P.W.-5, Amarjit Goswami and P.W.-6, Pritam Mahto, as per convenience of trial.

7. With the above direction, the present revision application stands disposed off.

(Rajesh Kumar, J.) Chandan/-