Indra Pal and Another vs State of U.P. and Another

S.C. Agarwal, J.—Heard learned Counsel for the revisionists, learned A.G.A. for the State and perused the material available on record.

No notice is issued to private opposite party in view of the order proposed to be passed today, however, liberty is reserved for private opposite party to apply for variation or modification of this order if she feels so aggrieved.

This revision is directed against the order dated 25.8.2010 passed by Additional Sessions Judge, Court No. 12, Bareilly in Sessions Trial No. 492 of 2006, State v. Indra Pal and Ors., under Sections 328 and 304, I.P.C., P.S. Kotwali, District Bareilly, whereby application of the accused-revisionists u/s 311, Code of Criminal Procedure was rejected.

The facts of the case are that P.W. 1 Smt. Amlawati, P.W. 3 Neetu and P.W. 5 Dr. Harish Chandra were examined as prosecution witnesses on 2.2.2007, 26.7.2007 and 24.4.2010 respectively, but they could not be cross-examined on behalf of the defence.

The application u/s 311, Code of Criminal Procedure was moved for recalling P.W. 1, P.W. 3 and P.W. 5 for cross-examination on the ground that these witnesses could not be cross-examined by the then defence counsel. The accused persons are illiterate and poor and have no knowledge of law. On 28.7.2010, they appointed Sri M.A. Ansari, advocate as their new counsel and thereafter it came to light that these three witnesses could not be cross-examined.

The aforesaid application u/s 311, Code of Criminal Procedure was rejected by the trial court on the ground that earlier, opportunity for cross-examination was given to the accused persons, which was not availed of by them and there was no ground to summon these witnesses for cross-examination. Hence, this revision.

Learned A.G.A. supported the impugned order.

Admittedly, P.W. 1, P.W. 3 and P.W. 5 were examined by the prosecution and they were not cross-examined at all by the then learned Counsel for the defence. Now, the revisionists-accused have engaged a new counsel and on perusal of the record, he found that these three witnesses could not be cross-examined at all and consequently he moved an application u/s 311, Code of Criminal Procedure for this purpose. In view of the facts that these three witnesses have not been cross-examined at all, learned Addl. Sessions Judge was not justified in rejecting the application. The case against the revisionists is under Sections 328 and 304, I.P.C., which is punishable with life imprisonment. In such a serious case, the right of cross-examination of the accused should not be foreclosed forever due to the fault of the counsel and client should not be penalized for the fault of the counsel. It was the duty of the trial court to afford reasonable opportunity to the accused for cross-examination of the witnesses.

Even though the conduct of the defence, during trial, has not been exemplary, but if the counsel for the defence was not cooperating in further progress of the case and deliberately avoiding the cross-examination of the witnesses, the trial court was always at liberty to cancel the bail of the revisionists, but their right of cross-examination should not have been closed.

Thus, the order passed by Addl. Sessions Judge cannot be sustained and is liable to be set-aside, however, subject to heavy cost.

Revision is allowed.

Impugned order dated 25.8.2010 is set-aside. The revisionists are directed to deposit a sum of Rs. 3,000 before the trial court within a period of three weeks from today alongwith a certified copy of this order. On deposit of cost, learned Addl. Sessions Judge shall fix a date for cross-examination of P.W. 1 Smt. Amlawati, P.W. 3 Neetu and P.W. 5 Dr. Harish Chandra and on such date these three witnesses shall be summoned and the defence shall be given an opportunity for cross-examination of these three witnesses. However, no adjournment shall be granted to the accused persons for the purpose of cross-examination of P.W. 1, P.W. 3 and P.W. 5. Thereafter, the case shall proceed in accordance with law.