In Dr. Rajesh Talwar and another v. C.B.I. and another
Case Details
Neutral Citation No. - 2024:AHC:152165 Court No. - 78 Case :- APPLICATION U/S 482 No. - 31373 of 2024 Applicant :- Ravi Opposite Party :- State of U.P. and Another Counsel for Applicant :- Sachin Malik Counsel for Opposite Party :- G.A. Hon'ble Sanjay Kumar Pachori,J. 1. The present 482 Cr.P.C. application has been filed by the applicant to quash the order dated 2.7.2024 passed by Additional Sessions Judge/Special Judge (POCSO Act) Baghpat in Session Trial No. 47 of 2021 (State Vs. Ravi) arising out of case crime No. 499 of 2021, under Sections 363, 376AB, 506, I.P.C. and Section 5m/6 of Protection of Children from Sexual Offences Act, Police Station & District Baghpat, whereby an application under Section 311, Cr.P.C. to recall PW-1 for cross-examination has been rejected. 2.
Facts
Brief facts of the case are that the applicant filed an application under Section 311, Cr.P.C. to call PW-1/first informant for granting an opportunity of cross-examination to the present applicant, which has been rejected after observing that a Coordinate Bench of this Court has directed to decide the case on day to day basis. 3.
Legal Reasoning
consider the position of law. 2 7. In Dr. Rajesh Talwar and another Vs. C.B.I. and another, (2014) 1 SCC 628, the Supreme Court considered the issue of fair trial observing in Para 10, which is as under:- “10. This Court in Selvi J. Jayalalithaa & Ors. v. State of Karnataka & Ors. (Writ Petition (Crl.) No.154 of 2013) decided on 30.9.2013, after referring to its earlier judgments in Triveniben Vs. State of Gujarat, AIR 1989 SC 1335; Zahira Habibullah Sheikh and Another Vs. State of Gujarat and others, AIR 2006 SC 1367; Capt. Amarinder Singh Vs. Prakash Singh Badal & Ors., (2009) 6 SCC 260; Mohd. Hussain @ Julfikar Ali v. State (Govt. of NCT of Delhi), AIR 2012 SC 750; and Natasha Singh Vs. CBI (State), (2013) 5 SCC 741, dealt with the issue of fair trial observing: Fair trial is the main object of criminal procedure and such fairness should not be hampered or threatened in any manner. Fair trial entails the interests of the accused, the victim and of the society. Thus, fair trial must be accorded to every accused in the spirit of right to life and personal liberty and the accused must get a free and fair, just and reasonable trial on the charge imputed in a criminal case. Any breach or violation of public rights and duties adversely affects the community as a whole and it becomes harmful to the society in general. In all circumstances, the courts have a duty to maintain public confidence in the administration of justice and such duty is to vindicate and uphold the ‘majesty of the law’ and the courts cannot turn a blind eye to vexatious or oppressive conduct that occurs in relation to criminal proceedings. Denial of a fair trial is as much injustice to the accused as is to the victim and the society. It necessarily requires a trial before an impartial judge, a fair prosecutor and an atmosphere of judicial calm. Since the object of the trial is to mete out justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and not a bout over technicalities and must be conducted under such rules as will protect the innocent and punish the guilty. Justice should not only be done but should be seem to have been done. Therefore, free and fair trial is a sine qua non of Article 21 of the Constitution. Right to get a fair trial is not only a basic fundamental right but a human right also. Therefore, any hindrance in a fair trial could be violative of Article 14 of the Constitution. 3 xx xx xx xx Article 12 of the Universal Declaration of Human Rights provides for the right to a fair trial what is enshrined in Article 21 of our Constitution. Therefore, fair trial is the heart of criminal jurisprudence and, in a way, an important facet of a democratic polity and is governed by rule of law. Denial of fair trial is crucifixion of human rights.” 8. In the case of Natasha Singh Vs. C.B.I. (State), (2013) 5 SCC 741, the Supreme Court dealt with the scope of discretionary power of Section 311, Cr.P.C. after referring the judgment of P. Sanjeeva Rao Vs. State of A.P., AIR 2012 SC 2242, which is as under:- “Grant of fairest opportunity to the accused to prove his innocence was the object of every fair trial, observed this Court in Hoffman Andreas v. Inspector of Customs, Amritsar, (2000) 10 SCC 430. The following passage is in this regard apposite: `In such circumstances, if the new Counsel thought to have the material witnesses further examined, the Court could adopt latitude and a liberal view in the interest of justice, particularly when the Court has unbridled powers in the matter as enshrined in Section 311 of the Code. After all the trial is basically for the prisoners and courts should afford the opportunity to them in the fairest manner possible.’ xxx xxx xxx xxx We are conscious of the fact that recall of the witnesses is being directed nearly four years after they were examined in chief about an incident that is nearly seven years old….. we are of the opinion that on a parity of reasoning and looking to the consequences of denial of opportunity to cross-examine the witnesses, we would prefer to err in favour of the appellant getting an opportunity rather than protecting the prosecution against a possible prejudice at his cost. Fairness of the trial is a virtue that is sacrosanct in our judicial system and no price is too heavy to protect that virtue. A possible prejudice to prosecution is not even a price, leave alone one that would justify denial of a fair opportunity to the accused to defend himself.” 4 9.
Arguments
Learned counsel for the applicant submits that the impugned order has been passed without considering the facts and circumstances of the evidence and the position of law. It is further submitted that the applicant has appointed his counsel on 2.7.2024, who filed an application under Section 311, Cr.P.C. 4. 5. Learned brief holder for the State Vehemently opposed the prayer. Heard Shri Sachin Malik, learned counsel for the applicant, Shri Pankaj Kumar Rai, learned brief holder for the State and perused the material on record. 6. Before dealing with the arguments of the parties, it is apposite to
Decision
In view of the above facts and circumstances, keeping in mind the settled position of law in Natasha Singh (supra) and Dr. Rajesh Talwar (supra) and without going into the merits of the case, the order dated 2.7.2024 is set aside. The application is disposed of with a direction to the trial court to recall the prosecution witness, PW-1 for cross-examination by the applicant. 10. Learned counsel for the applicant undertakes that without unnecessary ground he will not delay the cross-examination and complete the cross-examination of PW-1 on the next date of listing of the trial or when PW-1 is present in the court for cross-examination. Order Date :- 18.9.2024 T. Sinha