Rajesh Taparia vs State Of Rajasthan (2026:Rj-Jd:6733)
2026 Latest Caselaw 1750 Raj

Citation : 2026 Latest Caselaw 1750 Raj
Judgement Date : 5 February, 2026

[Cites 3, Cited by 0]

Rajasthan High Court - Jodhpur

Rajesh Taparia vs State Of Rajasthan (2026:Rj-Jd:6733) on 5 February, 2026

[2026:RJ-JD:6733]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
                S.B. Criminal Misc(Pet.) No. 5427/2025

Rajesh Taparia S/o Shanker Lal Taparia, Aged About 40 Years,
R/o K 207 Gali No 11 Chandna Bhakar Pratap Nagar Jodhpur
(Rajasthan)
                                                                             ----Petitioner
                                       Versus
1.       State Of Rajasthan, Through Pp
2.       Pukhraj Chandak S/o Shri Achal Das, Aged About 59
         Years, R/o Villaged Batadu Ps Gida District Barmer At
         Present      Resident      Of     Shiv     Shakti          Roller    Float    Mills
         Boranada Ps Borananda Jodhpur (Raj.)
                                                                      ----Respondents


For Petitioner(s)            :     Ms. Tania Chugh for
                                   Mr. Dharmendra Surana
For Respondent(s)            :     Mr. Vikram Singh Rajpurohit, PP



      HON'BLE MR. JUSTICE BALJINDER SINGH SANDHU

Order

05/02/2026 The present misc. petition under Section 528 BNSS has been

filed against the order dated 01.12.2016 (wrongly mentioned as

01.12.2017) passed by learned Additional Civil Judge and

Metropolitan Magistrate No.4, Jodhpur Metropolitan in Criminal

Original Case No.88/2013 (State Vs. Rajesh Taparia & Anr.),

whereby the learned Magistrate has closed cross-examination of

complainant PW-2 Pukhraj.

Learned counsel for the petitioner submits that during

prosecution evidence, complainant appeared for his evidence for

the first time on 01.12.2016 and the learned trial court recorded

his examination-in-chief, thereafter, as the counsel was engaged

(Uploaded on 07/02/2026 at 12:23:53 PM)

[2026:RJ-JD:6733] (2 of 4) [CRLMP-5427/2025]

in some other case, counsel could not cross-examine PW-2

Pukhraj, upon which, learned trial court vide order dated

01.12.2016 (wrongly mentioned as 01.12.2017) closed the

cross-examination.

Counsel submits that PW-2 Pukhraj, is a material witness

and the entire prosecution case rests upon his evidence, thus, one

opportunity may be granted to the petitioner to cross-examine.

Counsel further placed reliance on a decision of co-ordinate

Bench of this Court in Dalveer Singh Vs. State of Rajasthan

reported in 2013 CRI.L.J. 3064.

The Co-ordinate Bench of this Court in Dalveer Singh

(supra), has observed that criminal justice delivery system is

essentially founded on Constitution of India and a sacrosanct

fundamental right enshrined under Article 21 of the Constitution,

which guarantees right to life and liberty, cannot be circumscribed

and curtailed without adhering to the procedure established by

law. While granting indulgence to the accused, the Court made a

specific observation that a mistake of the counsel should not

prejudice the cause of a litigant. The Court held:-

"6.The entire criminal justice system is based on Constitution of India. Article 21 of the Constitution of India guarantees the right to life and personal liberty. Both life and personal liberty can be cribbed, cabined and confined only by procedure established by law. But even the procedure has to be a reasonable one. A fair trial is a constitutional guaranteed right of an accused. Since, the accused is pitted against the colossal power of the State, the laws, ipso facto, tilt in favour of the accused. Until and unless, the accused is given an opportunity to cross-examine a witness, he would not be able to demolish the prosecution case. Therefore, the right to cross- examine a witness is a fundamental right of the

(Uploaded on 07/02/2026 at 12:23:53 PM)

[2026:RJ-JD:6733] (3 of 4) [CRLMP-5427/2025]

accused; such a right cannot be brushed aside lightly by the trial court. Even if a prejudice is being caused to the prosecution, even then, the fundamental right cannot be ignored. Further, repeatedly it has been held both by the Apex Court and by this Court that a mistake of a counsel should not prejudice the case of a litigant.

7. In the case of P.Sanjeeva Rao, AIR 2012 SC 2242(supra), the Hon'ble Supreme Court has opined as under:- But merely because a mistake was committed, should not result in the accused suffering a penalty totally disproportionate to the gravity of the error committed by his lawyer. Denial of an opportunity to recall the witnesses for cross-examination would amount to condemning the Appellant without giving him the opportunity to challenge the correctness of the version and the credibility of the witnesses. It is trite that the credibility of witnesses whether in a civil or criminal case can be tested only when the testimony is put through the fire of cross- examination. Denial of an opportunity to do so will result in a serious miscarriage of justice in the present case keeping in view the serious consequences that will follow any such denial. It has further held as under:-

"We are conscious of the fact that recall of the witnesses is being directed nearly four years after they were examined-in-chief about an incident that is nearly seven years old. Delay takes a heavy toll on the human memory apart from breeding cynicism about the efficacy of the judicial system to decide cases within a reasonably foreseeable time period. To that extent the apprehension expressed by Mr. Rawal, that the prosecution may suffer prejudice on account of a belated recall, may not be wholly without any basis. Having said that, we are of the opinion that on a parity of reasoning and looking to the consequences of denial of opportunity to cross-examine the witnesses, we would prefer to err in favour of the Appellant getting an opportunity rather than protecting the prosecution against a possible prejudice at his cost. Fairness of the trial is a virtue that is sacrosanct in our judicial system and no price is too heavy to protect that virtue. A possible prejudice to prosecution is not even a price, leave alone one that would justify denial of a fair opportunity to the accused to defend himself."

8. Merely because the petitioner had moved his application three years after the PW-1 to PW-5

(Uploaded on 07/02/2026 at 12:23:53 PM)

[2026:RJ-JD:6733] (4 of 4) [CRLMP-5427/2025]

were examined as witnesses, merely because it may cause prejudice to the prosecution, even then the right of cross-examination cannot be denied to the petitioner. Therefore, the order dated 19-5-2008 is clearly untenable."

Learned Public Prosecutor does not dispute the fact that

opportunity of the petitioner to cross-examine the witnesses was

closed on the same date.

Looking to the overall facts and circumstances of the case,

as well as the law laid down by Co-ordinate Bench of this Court,

this Court is inclined to allow the present criminal misc. petition,

and the order dated 01.12.2016 (wrongly mentioned as

01.12.2017) is hereby quashed and set aside. The petitioner is

granted one last opportunity to cross-examine the witnesses PW-2

Pukhraj on the next date of hearing or as and when he is present,

and to participate in the trial, however, the petitioner shall pay a

cost of Rs.5,000/- to the complainant.