Som Kisku vs State of West Bengal

Joymalya Bagchi, J.—Petitioner has assailed order dated 18.05.2016 passed by thelearned Additional Sessions Judge, Fast Track Court-II, Raigunj,Uttar Dinajpur in Sessions Case No. 30/2014 whereby prayer forrecall of the victim for cross-examination was turned down by theTrial Court.

The factual matrix of the case portrays a sordid state of affairsin the matter of conducting trial in sensitive cases of sexual offences.The legislative intention of concluding trial within sixty days whichwas incorporated by 2013 amendment to the Code is being rendereda dead letter of law by the subterfuge adopted under the guise of abelated plea for cross-examination of the victim.

In the instant case the victim of sexual assault appearedbefore the Trial Court on 24.11.2014 for adducing her evidence. Theaccused person conveniently absented himself and in order to avoidharassment to inconvenience to the said victim the Trial Courtdirected the learned counsel to represent the accused under Section 317 Criminal Procedure Code and proceeded to record her evidence inchief. The learned counsel, however, refused to participate in the trialproceeding and cross-examine the witness and accordingly, the TrialCourt was constrained to close her evidence. Such order remainedunassailed and the petitioner accused absconded. Consequentially,warrant of arrest was issued against him. After lapse of one and halfyears the petitioner again appeared before the Court below & wascommitted to custody. Thereafter, the petitioner prayed for recall ofthe said witness and sought her cross-examination. Learned TrialCourt declined such prayer. Hence the petitioner is before this Court.

Learned counsel for the petitioner submits that the right tocross-examination of the victim is most vital for his defence and,therefore another opportunity ought to be extended to him. His clientought not suffer due to the indolence of his lawyer and in support ofsuch contention he relied on P. Sanjeeva Rao v. State of A.P.(2012) 3 SCC (Cri) 1. He also submitted that he is willing to pay costsand expenses for attendance of the witness for further crossexamination.

No doubt, right of cross-examination is a vital weapon in thearmoury of the accused and is a facet of the fair trial rightsguaranteed to him. However, it must also be borne in mind that theconcept of fair trial has undergone an evolution in recent years and isnot restricted to the rights of the accused alone but includes withinits benevolent sweep the rights of the victim and other stakeholdersin the justice delivery system so as to ensure quick efficient and justadministration of criminal justice in society.

In the instant case a victim of sexual assault is made to awaittrial for more than two years due to the devious tactics adopted bythe defence counsel in refusing to cross-examine her on the date ofher initial examination in 2014 and the ascendance of the accusedthereafter for about more than one and half years before finallyreappearing and resurrecting his plea for recall and crossexamination.It cannot, therefore, be said that no opportunity wasgiven to the petitioner to cross-examine the said witness. On theother hand, the petitioner in a calculated manner refused to avail ofsuch opportunity with the dishonest design to delay the trial andthereafter sought cross-examination of the witness after a lapse ofabout 2 years from her examination-in-chief. Such tactics to causedelay and dilation of trial is not unknown to criminal cases. It neednot be gainsaid that delay is an effective defence weapon for effacingthe memory of a witness and thereby render a criminal trial amockery in law and fact. Hence, it is imperative that the superiorCourts while exercising supervisory jurisdiction take note of suchpractices and ensure that an attempt in that regard is not rewardedby compassion and accommodation so that the accused on the onehand is permitted to dilate and delay proceeding and harasswitnesses and, on the other hand is indulged to seek recall for crossexaminationon the so-called plea of ensuring fair trial.

It is apposite in this regard to refer to the ratio of the Apex Court in State v. Shiv Kumar Yadav (2016) 2 SCC 402, wherein the ApexCourt categorically held that prayer for recall of a victim of sexualviolence on the ground of remissness on the part of the counsel and/or change of counsel ought not to be permitted as a matter of course.

Reliance on P. Sanjeeva Rao (supra) by the petitioner isinapposite inasmuch as in the said report the defence counsel hadfiled an affidavit explaining the reason why he had declined toexamine a trap witness as he intended to examine the said witnessafter the examination another witness who deposed on the self-samefacts. No such prudent purpose in declining the cross-examination ofthe victim is evident in the facts of this case save & except the unholyintention of delaying the trial by harassing the victim of sexualviolence and compelling her to appear repeatedly in the Court of lawfor cross-examination at the whim of the accused and his counsel.

I am, therefore, of the opinion that in this case adequateopportunity was given to the petitioner to cross-examine the victimand he intentionally chose not to avail of the same. That apart, he didnot promptly challenge the order closing the evidence of the saidwitness but absconded from the process of law for a protracted periodof time. Thereafter, he has belatedly resurrected his plea to crossexaminethe victim. Under such circumstances, to permit recall of thewitness would amount to giving a premium to such delaying tacticsand accordingly I am not inclined to accede to the prayer of thepetitioner to recall the victim for cross-examination. One cannotplead denial of right of cross-examination when one voluntarilychooses to give up such right in order to resort to his own stratagemof subterfuge and delay. He can only blame himself for his own folly.Principles of fairness in adjudication cannot be countenanced toreward unfair litigants who seek to abuse the process of law in thefirst place and thereafter seek refuge within its benevolent fold on theplea of fair trial.

A person who chooses to abuse the process of law and fritteraway his own rights cannot be extended the advantage of restorationof such privilege to the utter prejudice of the victim and otherstakeholders in the justice delivery system who have suffered delayand harassment at the hands of such litigant. Payment of costs to thevictim as pleaded by the petitioner, is no recompense to the utterabuse of process resorted by him in the factual matrix of the case.Hence, I am of the opinion this is not a fit case where recall of thevictim for cross-examination ought to be permitted particularly inview of the abuse of process resorted by the petitioner rendering thenugatory legislative imperative of ensuring safe and convenientprocedure for deposition of victims of sexual violence without facingthe harassment of repeated attendance in Court and prompt disposalof rape cases within sixty days from the date of institution in terms ofthe proviso to Section 309 of Criminal Procedure Code.

I, however, made it clear that the petitioner would be at libertyto cross-examine other witnesses and to lead his defence evidence inaccordance with law, if so advised.

In view of the aforesaid discussion, the petition is dismissed.