Ashok Kumar Vs. State of Rajasthan and anr. - Court Judgment

Excerpt:
criminal procedure code - section 482--opportunity to cross examine--two ladies examined in presence of accused--ladies could not be cross examined due to non- availability of counsel of accused inspite 2 more hearings--last adjonrnment on payment of costs of rs. 200/--held, it cannot be said that accused was not given opportunity of cross examination;there is no dispute that the two ladies were examined in court in the presence of the accused. his counsel was not available on that day and on his request, their cross-examination was deferred for the next date. on the next date also the counsel of the petitioner did not appear and again time was sought for cross-examination of the witnesses. the learned magistrate granted time on payment of costs of rs. 200/- and fixed july 14, 1993 for.....ordern.k. tibrewal, j.1. an important question of law has been raised by the learned counsel appearing for the petitioner. the question is : whether an accused can claim cross-examination to prosecution witnesses as of right at a subsequent stage of trial, if he failed to avail this right when opportunity was provided?2. in order to appreciate the problem, it is necessary to give necessary facts.the husband-petitioner is facing trial under section 498a, ipc in the court of additional munsiff and judicial magistrate no. 1, jaipur city, jaipur. july 2, 1993 was fixed for recording prosecution evidence. on this date, the witnesses, smt. sushila and smt. sunder appeared for their evidence. their examination-in-chief was recorded and cross-examination was deferred for the next date on the.....

Judgment:
ORDER

N.K. Tibrewal, J.

1. An important question of law has been raised by the learned Counsel appearing for the petitioner. The question is : Whether an accused can claim cross-examination to prosecution witnesses as of right at a subsequent stage of trial, if he failed to avail this right when opportunity was provided?

2. In order to appreciate the problem, it is necessary to give necessary facts.

The husband-petitioner is facing trial under Section 498A, IPC in the Court of Additional Munsiff and Judicial Magistrate No. 1, Jaipur City, Jaipur. July 2, 1993 was fixed for recording prosecution evidence. On this date, the witnesses, Smt. Sushila and Smt. Sunder appeared for their evidence. Their examination-in-chief was recorded and cross-examination was deferred for the next date on the request of the accused on the ground that his counsel was not available. On the next date i.e. July 3, 1993, the witnesses again appeared in the Court, but, instead of cross-examining them, the petitioner sought adjournment on the ground that his counsel has gone to Bombay. The learned Magistrate, in the interest of justice, granted adjournment on payment of costs of Rs. 200/- and next date was fixed as July 14, 1993 for cross-examination of these two witnesses. On 14-7-93 again the above witnesses appeared in Court but they were not cross-examined and an application was moved by the petitioner with a prayer to adjourn the case on the ground that his counsel was busy in some other Court in a murder case. The prayer was declined by the Magistrate presumably on the ground that the petitioner was given sufficient opportunity to cross-examine the witnesses but he did not avail the same. Thereafter, on 8-10-93 an application under Section 311, Cr. P.C. was moved by the petitioner to recall the aforesaid two witnesses, Smt. Sushila and Smt. Sunder for their cross-examination but the same was rejected vide impugned order which is under challenge in this petition.

3. It was strongly urged by the learned Counsel for the petitioner that the petitioner is facing trial under Section 498A, IPC and it involves jeopardy to his liberty, as he may be sentenced to jail on conviction. Learned Counsel, therefore, contended that the right to cross-examine the prosecution witnesses is a fundamental right of the accused and if that right is not availed by the accused for non-availability of his counsel for one reason or the other, the cross-examination should be provided at a subsequent stage or legal assistance at State's expenses should be provided to do the needful. Counsel contended that the petitioner had no control on his Lawyer if he chose to go Bombay instead of attending his case. It was then submitted that in case the petitioner is convicted on the evidence of these two witnesses in the absence of their cross-examination, such conviction shall be illegal as no one can be convicted without being properly defended. According to the learned Counsel, this Court in exercise of inherent powers under Section 482, Cr. P.C. should allow cross-examination of the witnesses for the ends of justice. Reliance is placed on the decision of the Court in Salim v. State of Rajasthan 1989 RCC 337. '

4. Learned Additional Public Prosecutor, on the other hand, supported the order of the Magistrate. He urged that the whole object of the petitioner was to harass the lady witnesses. He had full opportunity to cross-examine them but it. was not availed of by him deliberately. It was further contended that the purpose to defer cross-examination of the ladies was to harass by calling them to appear in the Court again and again, so that their patience is exhausted and they may not come in Court for further evidence. It was contended that the petitioner is not a poor man, unable to engage the services of a Lawyer, as such, he cannot claim free legal aid at the State costs. It was then contended that no request was made by the petitioner at any point of time before the learned Magistrate that he was unable to engage a Lawyer on account of his poverty. Learned Public Prosecutor seriously contended that the petitioner cannot be given any premium for his deliberate action aimed to harass the two ladies who had appeared thrice in the Court for their statements.

5. I carefully considered the respective submissions made by the learned Counsel for the petitioner and the learned Public Prosecutor.

Section 304(1), Cr. P. C. makes provision to provide legal aid to the accused at State expenses in certain cases. It provides that, where in a trial before the Court of Sessions the accused is not represented by a Pleader and where it appears to the Court that the accused has not sufficient means to engage a Pleader, the Court shall assign a pleader for his defence at the expense of the State.

Free legal aid is also provided by the state Legal Aid Board through various Legal Aid Committees if an accused does not have sufficient means to engage a Lawyer or is in custody. In the present case, it was never the grievance of the petitioner that he did not have sufficient means to engage the services of a Lawyer. No such request was made before the trial Magistrate. On the contrary, the petitioner has been engaging Lawyers at the trial stage as well as before this Court. Even in the petition filed by him no such grievance was made and no prayer has been made to provide him free legal aid. It appears that on the basis of the judgment in Salim's case (supra), this argument has been developed by the learned Counsel but, in my view, it has no substance. A man having sufficient means cannot claim for free legal assistance of a Lawyer at the expenses of the State, specially when he has already engaged a defence counsel of his choice. In a criminal case, an accused has a right to be defended by a Pleader of his choice and this right has been exercised by the petitioner by engaging Lawyers of his choice. He, therefore, cannot put any grievance that he had no opportunity to defend him properly or that he was entitled to get a Lawyer to defend him at the expenses of the State.

6. Further question which still remains to be answered is as to whether the trial Magistrate committed an error in declining to recall the aforesaid two ladies for cross-examination as prayed for by the petitioner in his application under Section 311, Cr. P.C.?

Section 311, Cr. P.C. reads as under :

Section 311. Power to summon material witness, or examine person present --

Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case.

A perusal of the aforesaid section reveals that . it consists of parts. The first part is discretionary and enables a Court at any stage (a) to summon any one as a witness; or (b) to examine any person present in the Court; or (c) to recall and re-examine any witness. The second part which is mandatory, compels the Court to take any of the above steps if the new evidence appears to be essential to the just decision of the case. There is no limitation on the power of the Court arising from the stage to which the trial may have reached, provided, the Court is bona fide of the opinion that for the just decision of the case, the steps shall be taken. The present case falls in the first part, which is discretionary. The discretion of course should be exercised judicially and reasonably. If the said power is exercised arbitrarily or unreasonably, this Court can pass necessary orders to prevent miscarriage of justice in exercise of inherent powers under Section 482, Cr. P.C.

7. In the back ground of the aforesaid facts, the problem involved in the present case may be considered. There is no dispute that the two ladies were examined in Court in the presence of the accused. His counsel was not available on that day and on his request, their cross-examination was deferred for the next date. On the next date also; the Counsel of the petitioner did not appear and again time was sought for cross-examination of the witnesses. The learned Magistrate granted time on payment of costs of Rs. 200/- and fixed July 14, 1993 for cross-examination of the wit-, nesses. On that day again the petitioner's counsel did not appear. Thus, prima facie it cannot be said that the petitioner was not given opportunity to cross-examine the witnesses. The argument of the learned Public Prosecutor may have substance that the petitioner adopted this delaying tactics to harass the two ladies to appear in Court again and again, so that their patience may get exhausted Therefore, it cannot be said that the petitioner had no opportunity to cross-examine the witnesses-and he cannot claim as of right to cross-examine-these witnesses at a subsequent stage.

Having held so, still I have one anxiety in my mind. The anxiety is that if the statements of the two witnesses remain uncrossed, it may cause serious prejudice to the petitioner, though, it may be due to his own fault. Both lady witnesses are material witnesses in the case and there is no material on record that the petitioner's counsel in fact did not go to Bombay and adjournment was sought on a false pretext. Section 311, Cr. P.C. enables the Court to act if the justice requires it. In such a situation, the witnesses may be compensated by costs to be paid by the accused. Section 309, Cr. P.C. permits adjournment of the proceedings on payment of costs by the prosecution or the accused, as the case may be.

8. After giving my anxious consideration to all the facts and circumstances of the case, I deem it just and proper to provide one more opportunity to the petitioner to cross-examine the above two ladies on payment of costs. They appeared thrice in Court but the petitioner did not cross-examine them for his own fault, I grant the opportunity to cross-examine them on payment of Rs. 500/- as costs to each one of them. In other words, if the petitioner wants to avail the opportunity to cross-examine the above referred two witnesses, he shall pay Rs. 1200/- including Rs. 200/- which was awarded by the learned Magistrate while adjourning the case on July 3, 1993 to July 14, 1993. The witnesses namely, Smt. Sushila and Smt. Sunder shall be summoned by the trial Magistrate on petitioner's depositing Rs. 1200/-in his Court within two weeks from today. In case the petitioner fails to deposit the amount the witnesses shall not be summoned for cross-examination and this petition shall stand dismissed.

The net result of the above discussions is that in the interest of justice, the petitioner is given an opportunity to cross-examine the witnesses Smt. Sushila and Smt. Sunder on payment of costs of Rs. 1200/- as indicated above. The petitioner shall deposit this amount in the trial Court within two weeks from today. The aforesaid two witnesses shall be recalled for cross-examination only on depositing the amount within two weeks, failing which this petition shall stand dismissed. The amount, if deposited, shall be paid to the two ladies on their appearance before the Court for cross-examination and it shall be the duty of the concerned Magistrate to see that the payment is made to them on the same day under receipt. The petition is disposed of as indicated above.