Indrapal Singh And Others vs State Of Uttarakhand

Ravindra Maithani, J

This petition has been filed by the petitioners under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code") for setting aside the impugned orders dated 13.11.2018 and order dated 19.12.2018 passed by 2nd Additional Sessions Judge, Haldwani, District Nainital in S.T. No.158 of 2013, State vs. Indrapal Singh & others.

Heard learned counsel for the petitioners and learned counsel for the State and perused the record.

Factual matrix necessary for disposal of the controversy briefly stated is that Sessions Trial No.158 of 2013, State vs. Indrapal Singh & others under Sections 364 IPC is pending in the court of II Additional District and Sessions Judge, Haldwani Nainital (hereinafter referred to as 'the case'). On 13.11.2018, a witness P.W.3 Amol Singh was present in the case but he was not cross examined and the court closed the opportunity to cross examine P.W.3 Amol Singh. Again on 19.12.2018 an application was filed seeking permission to cross examine the witness P.W.3 Amol Singh, which was rejected on the ground that the application is not maintainable. Aggrieved, the petition.

Learned counsel for the petitioners would urge that on one date when the witness had appeared he could not be cross examined. Thereafter the witness did not appear for many dates. On 13.11.2018, when the witness appeared, the Senior Advocate was not present in the Court on that date, therefore, the application for adjournment was moved, which was rejected. If the order allows to continue it would cause great hardship to the petitioners, as they would not get an opportunity to test the veracity of witness P.W.3 Amol Singh. Therefore, it is argued that at least one opportunity may be given to the petitioners, so that the witness P.W.3 Amol Singh may be cross examined. It is also argued that the petitioners are not at all at fault if witness could not be cross examined due to non-appearance of their learned counsel.

Learned counsel for the State submits that no counter affidavit as such is required in the matter because all the documents have already been filed.

Order sheet of the case is on record, which reveals that in the case efforts are being made for its expeditious disposal. What happened on 13.11.2018 cannot be appreciated for the simple reason that on the pre-lunch session when the matter was called, one of the learned counsel for the petitioners was present and an adjournment application was moved, which was rejected and matter was posted by the learned court below for cross examination on the same day, but on the subsequent call despite, presence of the witness, no cross examination was done. The court had observed in its order that the petitioners want to protract the trial. The witness has raised apprehension of his life and also stated that he had great difficulty in coming to appear before the court from Amroha.

The court is just weighing two aspects; one is the conduct of the petitioners in not getting the witness cross examined, who apprehends to his life and on the other hand right of a fair trial, as enshrined under Article 21 of the Constitution of India.

An accused has definitely a right to cross examine a witness, who speaks against them. The order dated 13.11.2018 of the learned court below also records that it was argued that the petitioners threaten the witness. The attention of the court has been invited to an order dated 23.10.2018 passed in the case, in which it is recorded that P.W.3 Amol Singh had filed an application that he could not appear before the court as he has gone out in connection with his job. On that date warrant issued against this witness was cancelled.

Having considered the submissions, this Court is of the view that one opportunity may be given to the petitioners to cross examine P.W.3 Amol Singh, subject to certain conditions and accordingly the petition may be allowed.

The condition would be that on a date fixed by the learned court below an opportunity will be given to the petitioners to cross examine P.W.3 Amol Singh; no adjournment on whatsoever ground shall be allowed for the purpose; since in order dated 4.06.2018 the learned court below has observed that adequate security be provided to P.W.3 Amol Singh for his appearance before the court, it may also be directed that all the expenses, as incurred by P.W.3 Amol Singh for his appearance on 13.11.2018 and on a future date, when he would be asked to appear before the Court, shall be borne by the petitioners and also in case security is provided, all the expenses for that purpose shall also be deposited by the petitioners. The amounts for it, shall be quantified by the learned court below, while summoning the witness. Learned court below may be free to pass any other order, that it may deem fit, so as to ensure the safety and security of the witness.

With the above observations the petition under Section 482 of the Code is allowed.