Rajan vs State

M. Sathyanarayanan, J.—The revision petitioner is the sole accused facing prosecution for the alleged commission of the offence under Sections 376 and 417 I.P.C. and the offences said to have been taken place ten months prior to 23.02.2006.

The revision petitioner/accused has filed C.M.P. No. 415 of 2008 under Section 311 Cr.P.C. to summon P.W. 1/victim stating among other things that the revision petitioner/accused was not fully grown up adult and he could not give instructions to his Counsel to conduct the cross-examination. Though all the witnesses were examined in chief, none of the witnesses was cross-examined on his behalf and therefore, an opportunity may be given to cross-examine all the prosecution witnesses to establish his innocence.

The said petition was opposed by the prosecution by contending that at the time of hearing of the application, out of 18 witnesses, 17 witnesses were examined by the prosecution and it was further pointed out that P.W. 1 was examined on 23.02.2006; P.W. 2 and P.W. 3 were examined on 07.06.2006; P.W. 4 to P.W. 7 were examined on 05.07.2006; P.W. 8 to P.W. 10 were examined on 26.07.2006. P.W. 11 and P.W. 12 were examined on 07.12.2006; P.W. 13 was examined on 24.01.2007; P.W. 14 was examined on 27.06.2007; P.W. 15 was examined on 11.07.2007 and P.W. 17 was examined on 05.03.2008 and at the belated point of time only, the petition dated 18.06.2008, came to be filed and no steps have been taken on behalf of the revision petitioner/accused to recall the witnesses within a reasonable time and hence, prayed for the dismissal of the petition.

The trial Court, has taken note of the facts that now-a-days Section 311 Cr.P.C. is abused which caused unnecessary delay in disposal of the criminal cases and that it is not easy to secure and produce the witnesses before the Court and felt that the reasons stated by the petitioner are not convincing and citing the said reasons, dismissed the petition, vide order dated 17.09.2008.

Challenging the legality of the same, the present revision is filed.

This Court has admitted the revision on 04.11.2008 and granted blanket order of interim stay until further orders, on the same day. Thereafter, the revision was listed on 22.12.2008 and it was directed to be called after vacation holidays.

When the revision was called on 27.03.2015, this Court directed the parties to find out the latest position and also the availability of witnesses.

The Honourable Supreme Court in Vinod Kumar Vs. State of PunjabAIR 2015 SC 1206 : (2015) CriLJ 1442 : (2015) 1 RCR(Criminal) 647 : (2015) 1 SCALE 542 : (2015) 3 SCC 220 : (2015) 1 SCC(L&S) 712 , has come down very heavily with regard to the grant of adjournments sought on drop of a that by counsel even though witness is present in the Court, contrary to principles of holding trial. It is relevant to extract hereunder paragraph 41 of the above said decision:

"41. Before parting with the case we are constrained to reiterate what we have said in the beginning. We have expressed our agony and anguish the manner in which trials in respect of serious offences relating to corruption are being conducted by the trial courts. Adjournments are sought on the drop of a that by the counsel, even though the witness is present in court, contrary to all principles of holding a trial. That apart, after the examination-in-chief of a witness is over, adjournment is sought for cross-examination and the disquieting feature is that the trial courts grant time. The law requires special reasons to be recorded for grant of time but the same is not taken note of. As has been noticed earlier, in the instant case the cross-examination has taken place after a year and 8 months allowing ample time to pressurize the witness and to gain over him by adopting all kinds of tactics. There is no cavil over the proposition that there has to be a fair and proper trial but the duty of the court while conducting the trial to be guided by the mandate of the law, the conceptual fairness and above all bearing in mind its sacrosanct duty to arrive at the truth on the basis of the material brought on record. If an accused for his benefit takes the trial on the path of total mockery, it cannot be countenanced. The Court has a sacred duty to see that the trial is conducted as per law. If adjournments are granted in this manner it would tantamount to violation of rule of law and eventually turn such trials to a farce. It is legally impermissible and jurisprudentially abominable. The trial courts are expected in law to follow the command of the procedure relating to trial and not yield to the request of the counsel to grant adjournment for non-acceptable reasons. In fact, it is not all appreciable to call a witness for cross-examination after such a long span of time. It is imperative if the examination-in-chief is over, the cross-examination should be completed on the same day. If the examination of a witness continues till late hours the trial can be adjourned to the next day for cross-examination. It is inconceivable in law that the cross-examination should be deferred for such a long time. It is anathema to the concept of proper and fair trial. The duty of the court is to see that not only the interest of the accused as per law is protected but also the societal and collective interest is safe-guarded. It is distressing to note that despite series of judgments of this Court, the habit of granting adjournment, really an ailment, continues. How long shall we say, "Awake! Arise!". There is a constant discomfort. Therefore, we think it appropriate that the copies of the judgment be sent to the learned Chief Justices of all the High Courts for circulating the same among the learned trial Judges with a command to follow the principles relating to trial in a requisite manner and not to defer the cross-examination of a witness at their pleasure or at the leisure of the defence counsel, for it eventually makes the trial an apology for trial and compels the whole society to suffer chicanery. Let it be remembered that law cannot allowed to be lonely; a destitute."

The fact remains that the witnesses were examined from 23.02.2006 till 05.03.2008 and the present petition came to be filed only on 18.06.2008 and though the revision petitioner/accused was defended by the Counsel, as to why his Counsel did not choose to cross-examine the witnesses while they were in the box, remains a mystery.

Though the learned Counsel for the revision petitioner/accused made a feeble attempt by submitting that the learned Counsel for the revision petitioner/accused before the trial Court has not performed his professional duty properly, this Court is unable to accept the same for the reason that the Advocates being the members of a ''Noble Profession'' are expected to discharge their duties fairly and properly by taking into consideration the interest of the clients and the cause of justice.

Though the revision petitioner/accused was having an option to proceed against his Counsel either before the Ethic body or Consumer Forum, he did not do so and came forward to file this revision challenging the said order. Even if this revision is allowed, on account of passage of time, the witnesses may not be available in the said addresses and in the light of the observations made in the above cited decision of the Honourable Supreme Court that "... If an accused for his benefit takes the trial on the path of total mockery, it cannot be countenanced. The Court has a sacred duty to see that the trial is conducted as per law. If adjournments are granted in this manner it would tantamount to violation of rule of law and eventually turn such trials to a farce. It is legally impermissible and jurisprudentially abominable.... In fact, it is not all appreciable to call a witness for cross-examination after such a long span of time. It is imperative if the examination-in-chief is over, the cross-examination should be completed on the same day.... The duty of the court is to see that not only the interest of the accused as per law is protected but also the societal and collective interest is safe-guarded....", coupled with the factual reasons, this Court is of the view that the impugned order warrants no interference.

In the result, this Criminal Revision Case is dismissed. The Court of Assistant Sessions Judge, Padmanabhapuram, is directed to complete the trial and pronounce the verdict as expeditiously as possible and the respondent/prosecution is also directed to extend their maximum co-operation so as to enable the trial Court to do so. Consequently, the connected miscellaneous petition is dismissed.