Uttarakhand High Court
C482/1673/2023 on 24 August, 2023
Office Notes,
reports, orders or
proceedings or
Sl. No Date COURT'S OR JUDGES'S ORDERS
directions and
Registrar's order
with Signatures
C482 No.1673 of 2023
Hon'ble Sharad Kumar Sharma, J.
Mr. Lalit Sharma, Advocate, for the
applicant.
Mr. V.K. Jemini, D.A.G. for the State of
Uttarakhand.
The proceedings of the Special Session
Trial No.475 of 2021, "State Vs. Bharat Singh",
stood instituted before the court of Special
Session Judge, POCSO, Udham Singh Nagar,
for trying the present applicant for the offences
under sections 363, 366, 376 and 506 of IPC,
and under section 5/6, 16 and 17 of the POCSO
Act.
When the trial was proceeding, the PW 2
was examined, but the opportunity of the cross-
examination of the PW 2, was not availed by
the applicant at the relevant point of time, when
the same was provided to him, and
consequently the Court has closed his
opportunity of cross-examination, so far it
relates to PW2, by an order dated 02.09.2022.
The order of 02.09.2022, where by which
the opportunity of the cross-examination of
PW2, was closed, it was not put to challenge by
the present applicant at the relevant point of
time, but rather he had waited for the stage
when the opportunity of cross-examination of
the PW 2 was closed by the court, on account
of the non availability of the counsel by an
order passed on it on 16.06.2023.
This belated challenge or seeking of the
belated opportunity to cross-examine PW 2,
would not be permissible, when the applicant
himself by his conduct has not examined PW 2,
at the relevant time when the opportunity was
provided, and under the garb of the denial of
the cross-examination of the PW7, he cannot
take the liberty to put a challenge to the order of
the closure of the opportunity of the cross-
examination of the PW 2, by an order dated
02.09.2022, which was rejected by the court on
his request.
As far as the PW 7, is concerned, whose
opportunity of cross-examination has been
closed on 16.06.2023, it has come on record
that on the date when PW 7, was supposed to
be examined, initially she has not appeared
before the court till 2:30 PM, and it is
contended in the application as filed by the
applicant on 28.06.2023, that their counsel Sri
R.P. Singh, had waited for availing the
opportunity of the cross-examination of the PW
7, but when she had not appeared till 2:30 PM,
owing to the ailment of the counsel, coupled
with the fact that there was an extreme heat due
to the climatic changes, then he had to leave
court premises to get the medical treatment. It's
not even that when PW 7, had appeared at 2:30
PM, the junior counsel to the office of Sri R.P.
Singh, the counsel for the applicant had
appeared before the court and sought an
opportunity from the court for being provided
with some another date to enable him to cross-
examine the PW 7, which has been rejected by
the impugned order.
The order of rejection of an opportunity
of cross-examination if that is taken into
consideration, as it has been impugned in this
C482 application, the same has been on the
ground, that the coordinate Bench of this Court
while considering the bail application of the
present applicant, has made an observation
"that the trial may proceed to examine the
prosecution witnesses", and that has been
interpreted by the learned trial Court as if the
direction to complete the evidence of the
prosecution would amount to that no
opportunity at all was required to be given to
the applicant to cross-examine the PW 7, which
he was unable to avail the said opportunity, due
to the non availability of the counsel, and his
ailment.
The interpretation given to the order of
24.05.2023, by the learned trial court doesn't
spell out a logical reason. Thus, while disposing
of this C482 application, the learned trial court
is directed as under:-
(a) That for the reason already considered in
the body of this judgment, the applicant's
opportunity to cross-examine the PW 2
stands closed in the light of the order
dated 02.09.2022, and the same will not
be permitted to be reopened.
(b) As far as the examination of the PW 7 is
concerned, since the applicant could not
avail the same due to the ailment of the
counsel and his non availability, he may
not be made to suffer on account of the
mistake of the counsel.
(c) The inability to examine PW 7 cannot be
said that the counsel appearing on his
behalf was not diligent in availing the
opportunity to examine PW 7, because
when she i.e. PW 7, had appeared at a
belated stage at 2:30 PM, the follow up
was done by the junior colleague and
when the senior counsel was not
available for cross-examination, the
junior colleague had sought an
adjournment, which was rejected and
consequently the opportunity to cross-
examine PW 7 was closed.
(d) On the recall application, thus, filed by
the applicant on 28.06.2023, the reason,
which has been assigned by the court, by
the impugned order, since it is based
upon a misinterpretation of an order
dated 24.05.2023, the part of the order
closing the opportunity of the applicant
for cross-examination of the PW 7,
would stand quashed.
(e) The court of Additional Session Judge,
would permit the applicant to cross-
examine PW 7, on the next date to be
fixed by the learned Sessions Court, and
in case, if the applicant doesn't avail the
opportunity of cross-examination of
PW7, on the next date thus to be fixed by
the court, his opportunity of the cross-
examination of PW 7, as a consequence
of the today's order would automatically
stand closed.
Subject to the aforesaid exception, the
C482 application would only partly stand
allowed, so far it relates to providing
opportunity of cross-examination of PW 7.
(Sharad Kumar Sharma, J.)
24.08.2023
NR
