Rajkumar @ Raju vs State Of Rajasthan
2022 Latest Caselaw 3284 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc(Pet.) No. 651/2020

1. Rajkumar @ Raju S/o Babu Lal, Aged About 39 Years, By Caste Nai, R/o Lalaniyo Ki Dhani, Barmer Aago, Tehsil And District Barmer.

2. Vikram S/o Babu Lal, Aged About 37 Years, By Caste Nai, R/o Lalaniyo Ki Dhani, Barmer Aago, Tehsil And District Barmer.

3. Kanta @ Meera W/o Babu Lal, Aged About 64 Years, By Caste Nai, R/o Lalaniyo Ki Dhani, Barmer Aago, Tehsil And District Barmer.

----Petitioners Versus

1. State Of Rajasthan, Through P.p.

2. Ghanshyam S/o Jogaram, Nakoda, Ps Balotra, District Barmer.

                                                                ----Respondents


For Petitioner(s)         : Mr Amit Mehta
For Respondent(s)         : Mr Mool Singh Bhati, Public Prosecutor



             HON'BLE MR. JUSTICE FARJAND ALI

                          Judgment / Order

03/03/2022

Instant criminal misc. petition has been preferred on behalf

of accused-petitioners, seeking quashing of the order dated

09.01.2020 passed by learned Special Judge, SC/ST (Prevention

of Atrocities) Act Cases, Barmer in Sessions Case No.191/2018,

whereby the learned court has closed right of the petitioners to

cross examine the prosecution witness Ghanshyam.

Bereft of elaborate details, brief facts necessary for the

disposal of present misc. petition are that the petitioners are

facing trial for offences under Sections 323, 341, 354, 325,

(2 of 4) [CRLMP-651/2020]

307/34 of the Indian Penal Code. During the course of the trial, a

prosecution witness Ghanshyam appeared before the trial court,

his examination-in-chief was recorded and when the counsel for

the accused-petitioners was called to make cross-examination

from the prosecution witness, till 1:30PM no one appeared to

cross-examine the witness and therefore, the learned trial court

closed right of the accused-petitioners vide order dated

09.01.2020. Said order is under assail before this Court.

Learned counsel for the petitioners submits that on the day

when the prosecution witness Ghanshyam was produced by the

prosecution before the trial court and his examination-in-chief was

recorded, the counsel for the petitioners was arguing a case in

another court and for that purpose necessary intimation had been

sent to the trial court. The counsel for another accused Poorak

Singh had started cross-examination of the prosecution witness

Ghanshyam, to the extent of defence of his accused and thus, no

delay occasioned owing to late coming of the counsel for the

petitioners in the trial court on that day.

He submits that the right to cross-examine has been closed

at 1:30PM only, without affording ample opportunity to the

accused-petitioners. He further submits that a bare perusal of the

order impugned reveals that no opportunity was afforded to the

accused-petitioners to do the cross-examination in absence of

their counsel. He also submits that the accused are being tried for

accusation of serious offences, for which the period of punishment

may extend to life imprisonment and therefore, looking to the

nature and gravity of the offences and involvement of personal

liberty of the accused, sufficient time ought to have been granted

to the accused-petitioners. He thus prayed for setting aside the

(3 of 4) [CRLMP-651/2020]

order dated 09.01.2020 and to provide one more opportunity to

the accused-petitioners to cross-examine the prosecution-witness

Ghanshyam before the trial court.

I have heard learned counsel for the parties and perused the

order impugned and other material available on record.

Right to defend a case is akin to fundamental rights

guaranteed by the Constitution of India and not providing

sufficient opportunity to defend amounts to direct infringement of

said right. There is no dispute that the right to cross-examine the

prosecution witness has been closed by the trial court at 1:30PM

and no opportunity was granted to the accused-petitioners to

cross-examine the witness in absence of their counsel. This error

is apparent on the face of the order-sheet.

The accused petitioners are facing trial for serious offences,

for which if the prosecution case is found proved, they may be

sentenced to suffer life imprisonment. Thus, in cases like such

nature, not providing sufficient opportunity to cross-examine the

prosecution witness is nothing but gross abuse of the process of

law and rather it would be miscarriage of justice if the opportunity

is not provided to the accused. In considered view of this Court,

not providing opportunity to the accused for cross-examination of

prosecution-witness would amount to denial of justice to him. In

any manner, the order impugned is not sustainable in the eye of

law and thus, the same deserves to be quashed.

Accordingly, this criminal misc. petition is allowed. The

impugned order dated 09.01.2020 passed by learned Special

Judge, SC/ST (Prevention of Atrocities) Act Cases, Barmer in

Sessions Case No.191/2018: State Vs Raju & others is hereby

quashed and set aside. The learned trial court is directed to

(4 of 4) [CRLMP-651/2020]

summon the prosecution-witness Ghanshyam again and upon his

appearance, sufficient opportunity to cross-examine him shall be

granted to the accused-petitioners.

The stay petition also stands disposed of accordingly.

(FARJAND ALI),J 127-MMA/-

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