High Court
Facts
{1} CRA 319 OF 2024IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL REVISION APPLICATION NO. 319 OF 2024Prakash S/o Sudam PanditAge: 33 years, Occu.: Agriculture,R/o. Pendhapur, Taluka : Gangapur,Dist.Aurangabad.….Applicant VersusState of Maharashtra….Respondent …..Advocate for Applicant : Mr.Rahul Pralhadrao MoteAPP for Respondent : Mr.D.R.Korade ….. CORAM : ABHAY S. WAGHWASE, J. RESERVED ON : 10 DECEMBER, 2024 PRONOUNCED ON : 17 DECEMBER, 2024 ORDER :1.In instant revision, original accused facing trial for offenceunder Sections 302, 307, 326, 324, 143, 147, 148, 149, 504, 506 ofthe Indian Penal Code (IPC) has taken exception to order dated03-12-2024 passed on exh.189 by learned District Judge-1, Vaijapur,who is seized with the trial of Sessions Case No.140 of 2023.2.Following prayers are raised in revision application : {2} CRA 319 OF 2024“B) The impugned order passed in Session Case No.140 of 2023 belowExh.189 dated 03-12-2024 thereby closing the cross examination ofprosecution witness no.13 below Exh.184, passed by District Judge-1,Vaijapur, Dist.Aurangabad may kindly quashed and set aside.C)That the order passed by learned District and Sessions Judge-1, Vaijapur in Sessions Case No.140 of 2023 dated 03-12-2024 belowExh.189 may kindly be stayed.”3.It is put-forth that accused revisionist is facing above trial. Thatprosecution has examined as many as 13 witnesses. Now matter isposted for recording statement of accused under Section 313 of theCode of Criminal Procedure. Learned Counsel would submit that on29-11-2024, PW13 Sitakant Gopal Palaskar, Assistant ChemicalAnalyzer, was examined by prosecution and after his examination-in-chief, learned Counsel representing accused proceeded to cross-examine said expert. It is pointed out that while cross-examinationwas in progress, more particularly, on the point of certain guidelinesand protocol to be maintained while collecting and sealing samplesfor analysis, learned trial Court did not permit further questioning onguidelines and asked defence Counsel to file application to first seekpermission to question witness i.e. on proposed questions put to theexpert. Learned Counsel pointed out that instead of applicationsought by learned trial Court, purshis was placed, but it was not {3} CRA 319 OF 2024accepted and thereby further directions were given to file affidavit.That accordingly, affidavit of accused, whom learned Counsel wasrepresenting, was filed. However learned trial Court proceeded topass order of closure of cross-examination and even rejectedapplication exh.189, which was tendered for setting aside cross-examination closing order.4.Learned Counsel emphasized that cross-examination is avaluable right of defence. That his precious right to conduct cross-examination has been thwarted. That serious prejudice is caused tothe accused by denial of cross-examination. That witness undercross-examination was an Chemical Analyzer. That due to order oflearned trial Court, valuable right of accused has been prejudiced,which would have bearing on defence of accused. Hence, aboveprayers.Learned Counsel, in support of above submissions, has soughtreliance on the judgment of Hon’ble Apex Court in the case of BipinShantilal Panchal v. State of Gujarat and Another, 2001 AIR SC 1158and judgment of this court in Criminal Writ Petition No.1764 of 2019in the case of Sanjay S/o Shankar Bhalkar and others v. State ofMaharashtra and others dated 13-01-2020. {4} CRA 319 OF 20245.Learned APP opposed the revision application on the groundthat witness was almost cross-examined. According to him, trialCourt has a right to curtail and control cross-examination and as suchwhen the cross-examination was exceeding, learned trial Court didnot permit the same and hence, he prays to reject revisionapplication. 6.After considering the above submissions and on going throughpapers, it is emerging that present revisionist is facing trial, which isbeing conducted by learned District Judge-1 Vaijapur vide SessionsCase No.140 of 2023. It further transpires that prosecution hasalready examined 13 witnesses by way of oral evidence. It is the lastwitness i.e. PW13 Sitakant, who seems to be while under cross-examination, occasion arose for filing application by defence i.e.exhibit 189 and the order passed below exh.184 is assailed therein. Learned Counsel for applicant has placed on record copy oftestimony of PW13 Sitakant, Assistant Chemical Analyzer. It appearsthat, he was initially examined by learned APP for State on29-11-2024 and further taken over by defence for cross-examination,which commenced from paragraph 8 onwards and when the cross-examination had reached upto paragraph 11 wherein expert was {5} CRA 319 OF 2024questioned about some guidelines regarding collection, packaging ofbiological samples and witness had answered and denied that he hadreceived samples in plastic bag and they were contaminated. Aftersuch recording, it seems that, learned trial Court has noted in theevidence itself as “The learned counsel for the accused was asked tofile an application seeking permission to the question which wasproposed by him. However, instead of filing application, he moved apurshis and stated therein that he asked the question to witness andthe witness had already answered it. It seems that learned counseldid not understand the implication of asking him to file theapplication. The purshis which is filed is appearing to be in thenature that he does not require any permission of the court and hecan ask any question and the Court must record it. In suchcircumstance, learned counsel needs to be restricted from furthercross-examination. Hence, the cross examination of witness isclosed.” It appears that it is the above order of closing cross-examination, with which the revision applicant is precisely aggrieved.7.Copy of exh.189 praying to set aside cross-examination closing
Legal Reasoning
{8} CRA 319 OF 2024prior permission for putting further questions is not getting clear. Ifat all the learned trial Judge felt that cross-examination is going onirrelevant footing or off-track, then it is justified on the part of trialcourt to request cross-examiner to restrict the cross-examination onrelevant point. Here, prima facie such situation does not seem tohave arisen. As long as cross-examination is on effective andmaterial points and it is relevant, the same needs to be permitted. 11.Here, from above reproduced observations of learned trialcourt in paragraph 4, primarily it seems that learned trial Judge feltoffended due to improper conduct of defence Counsel. However, it isto be borne in mind that during course of trial, on account of anydifferences between Court and cross-examiner, rights of accusedshould not be adversely affected. With such perception and view andmore importantly in the interest of fair trial and opportunity,impugned order closing cross-examination is required to be set aside.Learned defence Counsel is also expected to present himself inconducting the matter in a manner which would not disturb thedecorum of the Court while proceedings are in progress and everyendeavour should be made to harmoniously conclude theproceedings, which are already at fag end. It appears from Roznama {9} CRA 319 OF 2024that stage of recording statement under Section 313 of the Code ofCriminal Procedure, has already being reached. In view of abovediscussion, I proceed to pass following order. ORDER(I)Criminal Revision Application No.319 of2024 is allowed. (II)Trial Court to offer opportunity to defenceCounsel to further cross-examine PW13 SitakantGopal Palaskar, Assistant Chemical Analyzer asper it’s convenient date by recalling the saidwitness. ( ABHAY S. WAGHWASE ) JUDGE SPT
Arguments
{6} CRA 319 OF 2024order passed on exh.184 and to permit PW13 Sitakant to be cross-examined is moved on behalf of accused nos.1 and 2 through learneddefence Counsel on 29-11-2024 itself i.e. on same day. Say oflearned APP is also obtained on the same date and impugned orderbelow exh.189 seems to be passed on 03-12-2024 rejecting theapplication to set aside “cross-examination closing order”. 8.Learned Counsel for revisionist invited attention of this courtto the observations of learned trial Court, more particularly toparagraph 4 of the impugned order and submitted that in the interestof fair trial and fair opportunity to cross-examine PW13, impugnedorder on exh.189 be set aside.9.Exhibit-189 is an application for setting aside cross-examination closing order passed i.e. on exh.184, which is thesubstantive evidence of PW13 Sitakant, an expert. Perused thenoting of trial Court taken during cross-examination in paragraph 11was in progress. Paragraph 4 of the impugned order, is as under :“I am well aware that learned counsel Shri R.P.Mote wascross-examining witness on behalf of accused persons andnot for himself. But it does not mean that he can actagainst settled principles of law and against the order of {7} CRA 319 OF 2024the Court. Since the act done by counsel before the courtbinds his client and since the cross-examination of theconcerned witness has been closed due to improperconduct of learned counsel for accused Nos.1 and 2, thequestion of setting aside the order does not arise.” Hence,application exh.189 is rejected. 10.In the light of above discussion, here revision seems to beoffshoot of order of closing cross-examination of expert witnessPW13 Sitakant conducted by defence. It need not be stated thatcross-examination is a valuable and precious right of accused. Everyaccused has right of fair trial, which includes fair opportunity todefend himself. From above discussion, it is emerging that in trialCourt, last witness of prosecution i.e. PW13 Sitakant, an expert wasfacing cross-examination and the above situation seems to havecropped up. No doubt every trial Judge has right to control cross-examination, but equally every accused has corresponding right tobring on record relevant cross-examination. On going throughparagraph 11, cross-examination seems to be proceeding on the pointof possibility of contamination of sample due to manner of itspackaging. In the considered opinion of this Court, it was a relevantquestion. Even expert seems to be answering the questions put in incross-examination. As to what prompted learned trial Court to seek