Kanhaiyalal vs State of Maharashtra

Heard. Rule. Rule made returnable forthwith. Heard by consent of parties.

By this petition under Article 227 of the Constitution of India, the accused No. 1 in Regular Criminal Case No. 3249/2008 pending on file of Chief Judicial Magistrate, Nagpur, has prayed for issuing appropriate writ, order or direction for quashing and setting aside the order dated 17.06.2013 passed below Exh. 741 in said case rejecting the prayer for recall of PW1 and PW14 sought by the petitioner by the trial Court and so also for quashing and setting aside the order dated 15.07.2013 passed by the learned District Judge -5/A.S.J. Nagpur dismissing application in revision No. 175/2013 preferred by the petitioner challenging the order passed by the trial Court.

Considering the short controversy involved in the matter, it is wholly unnecessary to recite in detail the subject matter involved in said case except stating that the petitioner along with 10 other accused is facing the said case instituted upon the Police report upon the accusation of having committed the offences under Sections 409, 420, 466 and 477 of I.P.C.

Mr. Thakkar, learned counsel for the petitioner submitted that during the course of the trial by 26.11.2008 the prosecution had examined PW1. The said witness was duly cross-examined by all the accused including the petitioner. During the further period ending up-till 31.03.2013, in all 14 witnesses were examined at trial by the prosecution. Mr. Thakkar submitted that on 28.03.2013 the learned Advocate appearing for the petitioner withdrew his Vakalatnama for the proceedings.

Mr. Thakkar further submitted that trial Court vide order passed on 03.04.2013 decided the application at Exh. 198 for recall of PW1 preferred by the original accused No. 9, as well as similar request made by the prosecution vide application Exh. 330. Mr. Thakkar submitted that at said juncture as petitioner was not represented by any Advocate, no cross-examination could be made on behalf of the petitioner and the further cross-examination of PW1 on behalf of him came to be declined.

Mr. Thakkar submitted that on 11.06.2013 the petitioner engaged another Advocate. The said Advocate after going through the record of the case found that it was necessary to cross-examine PW1 as well as PW14 in view of the material brought on the record during the further cross-examination of PW1 and accordingly preferred an application at Exh. 741 which was rejected by the trial Court vide order dated 17.06.2013 impugned in the present petition. It is submitted that the petitioner assailed the said order by preferring an application in revision to the Court of Session. However, the same also came to be rejected vide order dated 15.07.2013 also impugned by the petitioner in the present petition.

Mr. Thakkar, contended that application was rejected by the trial Court mainly on the count that when PW1 was recalled on behalf of the prosecution and accused No. 9, petitioner had all the opportunity to cross-examine PW1 but he failed to avail it. It is submitted that it is also rejected on count of the matter being made time bound by the order of this Court and the petitioner is trying to delay the matter.

Mr. Thakkar contended that both the reasons given for rejecting the application made by the petitioner are improper. It was contended that the trial Court completely missed the fact that services of the Advocate were available to the petitioner on the earlier occasion when PW1 was examined at the trial and such a services were not available to him after 28.03.2013. It was urged hence the decision thereafter taken by petitioner lay man to decline the cross-examination due to not understanding significance of the said evidence should not have been made a ground for rejecting request for such a cross-examination made on his behalf after such need was felt by the Advocate engaged by him later on. It was urged that considering the date on which the application for recall was made by prosecution and the date on which the said request was decided by the trial Court along with the similar request made by accused No. 9, the petitioner cannot be said to be responsible for delaying the proceedings. It was thus contended that considering the nature of serious charge faced by the petitioner at the trial, not permitting him to further cross-examine PW1 and PW14 would cause great prejudice to him, while no such a prejudice would be caused to the other side in the event of said request of petitioner is allowed. It was urged hence the orders impugned deserve to be quashed and set aside as sought.

Mr. N.S. Rao, learned A.P.P. countered the aforesaid submissions by submitting that the record of the case reveals that petitioner has already cross-examined PW1. It is submitted that when PW1 was recalled upon the application made by accused No. 9 as well as by the prosecution, the petitioner was given due opportunity to cross-examine the said witness. However, he has not cross-examined the said witness and as such now it is not open for him to contend that he was not given a fair opportunity to defend himself at trial. It is submitted that hence the application for recalling PW1 as well as PW14 for further cross-examination being germane to failure of petitioner to not to take prompt steps at proper time. It is submitted that the proceedings being expedited by this Court and hence required to be completed expeditiously and allowing such a request would have resulted in prolonging the proceedings, no fault could be found with the trial Court in rejecting the application made or Court of Session maintaining the said order. The learned APP thus submitted that no case being made for warranting an interference with the said orders passed, the petition be rejected.

Thoughtful considerations were given to the submissions advanced by both the sides. It is crystal clear that the petitioner is contesting the trial in question since the year 2008. The same is apparent from the fact of himself having duly cross-examined not only PW1 but all the other witnesses through his Advocate until his Advocate withdrew the Vakalatnama in 28.3.2011. It is indeed true that the petitioner had an opportunity to cross-examine PW1 after his recall was permitted by trial Court by allowing application made by original accused No. 9 as well as the prosecution. However, considering the period for which the trial has been lengthened, the statement made by the learned counsel for the petitioner at the bar that petitioner is suspended employee from the Court facing financial exigency was then not able to engage another Advocate, denotes that the petitioner then having not realised the implication of the further material brought on the record after the recall of PW1. Having regard to the same, the request for recalling the said witnesses and so also the further witness i.e. PW14 earnestly felt by the Advocate later on engaged by him prima facie cannot be said to be for the purposes of prolonging the trial. As a matter of fact, the record reveals that request for recall of PW1 was made by original accused No. 9 on 06.03.2010 and by the prosecution on 19.12.2012. Admittedly the said application preferred by accused No. 9 in the year 2010 when petitioner had benefit of services of his Advocate, was not then decided but was decided much later on. In these circumstances, the order passed by the trial Court rejecting the recall of PW1 and PW14 for the further cross-examination apparently does not appear to be furthering either cause of justice or for giving a fair and equal opportunity to both the sides at the trial. It needs no saying that fairness and equal opportunities are the soul of any criminal trial. Having regard to the same, the request deserves consideration. The same deserves consideration as there appears substance in the submission of the learned counsel for the petitioner that refusal of such an opportunity is likely to be more prejudicial to the petitioner than respondent suffering a prejudice by granting it. With regard to the grievance made by the learned APP about the proceedings getting prolonged, the care about it can be taken by giving suitable direction to the trial Court.

Resultantly, for serving ends of justice, the order dated 17.06.2013 passed below Exh. 741 in Regular Criminal Case No. 3249/2008 by learned Chief Judicial Magistrate, Nagpur and order dated 15.07.2013 passed in Criminal Revision No. 175/2013 by learned District Judge-5 and Additional Sessions Judge, Nagpur are hereby quashed and set aside. The application Exh. 741 is hereby allowed. The parties are directed to appear before the trial Court on 30.08.2013. The prosecution shall keep the witnesses permitted to be recalled for the cross-examination by the petitioner, present before the Court on the date which would be fixed by the trial Court for such a purpose. The trial Court to issue the necessary process for securing the presence of the said witnesses for the date fixed by the said Court for such a cross-examination. The petitioner shall keep his Advocate present on such a date fixed and shall cross-examine said witnesses on said date or on the further date, if any required to be fixed due to the cross-examination being not over on the stipulated date. Rule made absolute in the aforesaid terms.