Jagendra Singh Parihar vs The State of Madhya Pradesh

G.S. Solanki, J.—Heard finally with the consent of the learned counsel for the parties. This revision has been preferred by the applicant u/s 397/401 of the Cr.P.C. being aggrieved by order dated 27.4.2013 passed by First Additional Sessions Judge, Khandwa in S.T. No. 169/2010 whereby opportunity of cross-examination which was granted by this Court vide order dated 27.2.2013 passed in M. Cr. C. No. 2275/2013, has been closed.

The facts, in short, giving rise to this petition are that the applicant is facing trial in S.T. No. 169/2010 before First Additional Sessions Judge, Khandwa. During trial, the applicant filed an application u/s 311(2) of the Cr.P.C. for recalling witnesses Raghvendra (PW-1) and Sudhir Singh (PW-5), which was dismissed by the trial Court. Being aggrieved thereby, the applicant filed a petition u/s 482 of the Cr.P.C., M. Cr. C. No. 2275/2013 before this Court, which was allowed vide order dated 27.2.2013 and this Court directed the trial Court to provide an opportunity to the applicant to cross-examine the aforesaid witnessed by recalling them u/s 311 of the Cr.P.C. In compliance of the same, the trial Court recalled the aforesaid witnesses on 27.4.2013, however, on the said date, learned Sr. Counsel appearing on behalf of the applicant was not present to cross-examine the aforesaid witnesses. Thereafter, an application was moved by defence counsel, which was dismissed, hence this petition.

Learned counsel appearing for the applicant has submitted that the trial Court committed illegality in not appreciating the fact that the defence counsel could not appear before the trial Court because there was marriage ceremony in his family. Counsel has further submitted that this Court has already directed the trial Court to afford an opportunity to cross-examine witnesses Raghvendra (PW-1) and Sudhir Singh (PW-5) with the observation that right of defence is a valuable right of the accused, therefore, the impugned order be set aside and applicant be provided an opportunity to cross-examine the aforesaid witnesses.

Learned Government Advocate appearing on behalf of the State has supported the order passed by the trial Court.

I have perused the impugned order along with the order passed by this Court dated 27.2.2013 in M. Cr. C. No. 2275/2013. It is true that the aforesaid witnesses were present before the trial Court on 27.4.2013, however, the counsel of the applicant could not appear before the trial Court due to personal cause like marriage ceremony in his family. In my opinion, the trial Court should have adjourned the case with the condition that the applicant would bear the expenses of the said witnesses for next date of hearing. Thus, I find that the trial Court committed illegality in closing the opportunity of the applicant to cross-examine the aforesaid witnesses.

Consequently, the revision is allowed. Impugned order is set aside. The trial Court is directed to provide an opportunity to the applicant to cross-examine witnesses Raghvendra (PW-1) and Sudhir Singh (PW-5) by recalling them u/s 311 of the Cr.P.C. subject to depositing their expenses by the applicant in the Court. This revision is disposed of with the aforesaid directions.