Kishor Tiwari @ Kissu vs State Of Madhya Pradesh

Sanjay Dwivedi, J

The applicant has filed this petition under Article 482 of Cr.P.C. challenging the order dated 15/06/2021 passed by the court below directing the

accused to cross-examine the witnesses as per the trial programme shown in the impugned order itself.

The learned counsel for the applicant submits that the trial Court is haphazardly proceeding with the trial and just trying to conclude the trial ignoring

the proper procedure for conducting a trial. She submits that from the impugned order itself, it is clear that the Court on one hand has observed that

the seized material be called as those seized items are necessary before recording the witnesses, but not produced before the court despite the Court

directed to record the statement of witnesses and if required they would be called again. She submits that it appears that the court is under pressure

because on earlier occasion vide order dated 23/06/2020 passed in M.Cr.C No. 19189/2020 this court directed court below to conclude the trial within

the period of six months after commencement of physical trial, but according to the counsel for the applicant at present no physical trial is being

conducted in the court and it is infact not possible to cross-examine the witnesses through virtual hearing that too in a trial for the offence of Section

302 of IPC. She submits that the case which is being tried is based on circumstantial evidence and it is almost infeasible to cross-examine four

witnesses through virtual hearing. Therefore, the manner in which trial is being conducted, is contrary to law. She submits that the reason for not

acceding to the request of the applicant to record the statement of the witnesses after production of seized items does not appear to be proper merely

because the age of the witnesses are 71 and 62 years, therefore, their evidence has been directed to be recorded even through virtual hearing. She

submits that the accused is fully co-operating with the trial but that does not mean his right of defence can be curtailed in this manner because the

manner in which trial is being conducted clearly indicates that the accused would not be able to defend himself in proper manner.

Shri Malviya, appearing on behalf of the respondent/State submits that the court has taken note of the order passed by this court and also taking note

of the fact that the accused remained absconding for a long and the trial delayed to an incident occurred 20 years back, therefore, there is nothing

illegal on part of the court below and the order impugned does not call for any interference.

Considering the rival contentions of the learned counsel for the parties and perusal of the order, I am of the opinion that the order dated 15.06.2021

passed by the trial Court which is impugned in this petition appears to be unreasonable and therefore the same is not sustainable. Merely because this

Court has directed on earlier occasion to conclude the trial within a period of six months but the Court should take note of the fact that the said

direction is directive and period was fixed when physical trial is commenced in the Court. At-present there is surge of COVID-19 and no physical trial

is being done, therefore, it is expected from the court below to consider this aspect and give proper opportunity to the accused to defend himself. The

order passed by this Court on 23.06.2020 is relaxed to the extent that at-present trial is not being done, therefore, cross-examination of the witnesses

through virtual hearing is not justified and reasonable and as such that period of six months is relaxed directing the trial Court to record the statement

of the witnesses as soon as the physical hearing starts in the Court and in the meantime the trial Court will make all endeavours to call the seized

material before the Court. It is further directed that the trial may be conducted in a manner which is permissible under the law and provide proper

opportunity to the accused to defend himself.

Ex consequentia, the order dated 15.05.2021 passed by the trial Court is set aside directing that the period of six months may not be treated to be

mandatory and would be applicable only when physical trial is conducted in the Court.

This petition is accordingly allowed to the above extent giving liberty to the court below to conclude the trial expeditiously giving proper opportunity to

the accused to defend himself so that the basic principle of criminal jurisprudence could not be defeated as the accused has every right to defend

himself.