Jharkhand High Court
Firoz Shahnawaz Aged About 53 Years Son ... vs The State Of Jharkhand ... Opposite ... on 7 February, 2024
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
Cr. M.P. No.3121 of 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No.3121 of 2023
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Firoz Shahnawaz aged about 53 years son of late Md. Habibullah,
resident of Quarter no. EWS-36, near Sandeep Store, Harmu
Housing Colony, P.O. and P.S. Argora, District- Ranchi, At present
resident of Jora Talab, in front of Lake View Hospital, P.O. & P.S.
Bariatu, Dist.- Ranchi ... Petitioner
Versus
The State of Jharkhand ... Opposite Party
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For the Petitioner : Mr. Nitish Kr. Sahani, Advocate
For the State : Mr. Pankaj Kr. Mishra, Addl. P.P.
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PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
By the Court:- Heard the parties.
2. This Criminal Miscellaneous Petition has been filed invoking the
jurisdiction of this Court under Section 482 of the Code of Criminal Procedure
with a prayer to quash the order dated 27.07.2023 passed by learned Additional
Judicial Commissioner-II, Ranchi in connection with N.D.P.S. Case No.33 of
2022 arising out of Lower Bazar P.S. Case No.125 of 2022 whereby and where
under the learned Additional Judicial Commissioner-II, Ranchi rejected the
prayer of the petitioner to recall the P.W.1, P.W.2 and P.W.3 for their cross-
examination by the petitioner who is the accused of the said N.D.P.S. Case
No.33 of 2022 arising out of Lower Bazar P.S. Case No.125 of 2022 which is now
pending in the court of learned Additional Judicial Commissioner-II, Ranchi.
3. The brief facts of the case is that in the said N.D.P.S. Case No.33 of 2022
arising out of Lower Bazar P.S. Case No.125 of 2022, the examination-in-chief of
P.W.1 was done on 05.12.2022 and on 03.02.2023, the examination-in-chief of
both the P.W.2 and P.W.3 were recorded.
4. It transpires from the endorsement made by the Presiding officer in the
deposition that the accused was produced during examination-in-chief from
the jail through video conferencing but no one turned up on behalf of the
petitioner who was the accused in the said case; hence, he discharged the
petitioner. The learned Additional Judicial Commissioner-II, Ranchi observed
that the opportunity was given to the defence to cross-examine the witnesses
but it failed to avail the same on two different dates when the prosecution
witnesses appeared before the court and the three witnesses sought to be
recalled are public servants whose working hours are precious and the
accused/petitioner has been in custody and the trial is going on in a
preferential order and rejected the prayer to recall the P.W.1, P.W.2 and P.W.3.
5. Learned Addl.P.P. appearing for the State submits that there is no merit
in the Cr.M.P. and there is no justifiable reason to recall the P.W.1, P.W.2 and
P.W.3, but fairly submits that the public prosecutor probably escaped to ask the
questions regarding identification of the accused/petitioner to the P.W.1, P.W.2
and P.W.3; hence, in case this Court allows the prayer to recall the P.W.1,
P.W.2 and P.W.3 then the prosecution be permitted to ask questions regarding
the identification of the accused by the witnesses. Therefore, it is submitted that
this Cr.M.P., being without any merit, be dismissed.
6. Having heard the rival submissions made at the Bar and after carefully
going through the materials available in the record, this Court finds that the
learned Additional Judicial Commissioner-II, Ranchi has committed a
perversity in rejecting the prayer to recall the P.W.1, P.W.2 and P.W.3; as
because, though it has been mentioned in the order dated 27.07.2023 that the
opportunity was given to the defence to cross-examine the witnesses but the
endorsement made in the deposition of the witnesses by the said learned
Additional Judicial Commissioner-II, Ranchi do not show that he offered the
accused/petitioner who was said to be appearing through video conferencing
to cross-examine the witnesses himself. It is strange that though the learned
Additional Judicial Commissioner-II, Ranchi claims that the accused person
was all along present during the examination of the witnesses through video
conferencing; as to why no question regarding the identification of the accused
person was not asked to the P.W.1 and why the P.W.2 and P.W.3 instead of
identifying the accused person who was appearing through video
conferencing, in paragraph-6 of their respective depositions, have stated that
they can identify the accused if they can see him. The undisputed fact remains
that the lawyer of the petitioner was not present so it was incumbent upon the
learned Additional Judicial Commissioner-II, Ranchi to offer the petitioner to
cross-examine the witnesses himself. It would have been a different matter had
the accused expressed his inability but certainly it was a perversity committed
by the learned Additional Judicial Commissioner-II, Ranchi in discharging the
witnesses, without offering the petitioner the opportunity to cross-examine the
witnesses.
7. It is a settled principle of law that for exercise of the power vested under
Section 311 of the Code of Criminal Procedure, the court must necessarily
consider and ensure that the recalling of a witness for cross-examination or re-
examination has to be essential for the just decision of the case. The paramount
requirement is just decision and for that purpose the essentiality of a person to
be recalled and reexamined should be ascertained; as has been held by the
Hon'ble Supreme Court of India in the case of Rajaram Prasad Yadav vs. State
of Bihar & Another reported in (2013) 14 SCC 461.
8. Now, coming to the facts of the case, as has already been indicated
above, it is a sine qua non in all the criminal trials where the witnesses are
supposed to know the accused, such witnesses should be asked to identify the
accused if the accused is present in the court either physically or through video
conferencing but for reasons best known to him, the learned Additional
Judicial Commissioner-II, Ranchi has committed a grave mistake by not asking
any of the three witnesses to identify the petitioner who was stated to be
present during their examination-in-chief through video conferencing.
9. Further, the learned Additional Judicial Commissioner-II, Ranchi, as has
already been indicate above, has failed to discharge the duty casted upon him
by not offering the accused the chance/opportunity to cross-examine the
witness himself, consequent upon the failure of his counsel to turn for the
cross-examination of the witnesses. There is no dispute that in a fair criminal
trial a reasonable opportunity should be given to an accused person to cross-
examine the witness. There is undisputedly absolutely no cross-examination of
any of the three witnesses being the P.W.1, P.W.2 and P.W.3 but still the
learned Additional Judicial Commissioner-II, Ranchi instead of allowing the
petition filed under Section 311 of the Code of Criminal Procedure to recall
them for their cross-examination by the accused/petitioner through his lawyer,
has rejected the same citing trivial reasons which are even remotely not related
to just decision of the case and thereby committed a perversity.
10. Accordingly, this Court has no hesitation in holding that the
continuation of the perverse order dated 27.07.2023 passed by the learned
Additional Judicial Commissioner-II, Ranchi in connection with N.D.P.S. Case
No.33 of 2022 arising out of Lower Bazar P.S. Case No.125 of 2022 will amount
to abuse of process of law. Hence, the same is liable to be quashed and set
aside.
11. Accordingly, the order dated 27.07.2023 passed by the learned
Additional Judicial Commissioner-II, Ranchi in connection with N.D.P.S. Case
No.33 of 2022 arising out of Lower Bazar P.S. Case No.125 of 2022 is quashed
and set aside against the petitioner.
12. Further, the petition dated 08.05.2023 filed by the accused/petitioner
with a prayer to recall the P.W.1, P.W.2 and P.W.3 for their cross-examination
by the accused/petitioner is allowed and the learned Additional Judicial
Commissioner-II, Ranchi is directed to pass necessary order for their further
examination-in-chief, if necessary and their cross-examination by the
accused/petitioner in the light of the observations made by this Court in this
judgment.
13. In the result, this Cr.M.P. stands allowed.
(Anil Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated the 07th of February, 2024
AFR/ Animesh
