Accused' Right To Cross Examination Could Not Be Closed On Account Of Absence Of His Counsel; Duty of Court To Provide Legal Aid Counsel: HP HC [Read Order]

The order passed by a Single Bench of Justice Sandeep Sharma is a shining example of exercise of inherent power by the High Court under Section 482 of CrPC, in the interests of justice.

Notably, the Petitioner herein had approached the High Court under Section 439 of CrPC for regular bail. However, during the course of hearing, he did not press the prayer for bail but rather challenged an order dated April 8, 2019, of the Trial Court, whereby his right to cross-examine the prosecution witnesses was closed, on account of absence of his counsel, who otherwise had informed the court that he on account of pre-occupation at Nalagarh is unable to come.

The Petitioner had pleaded the Court to exercise its inherent powers under Section 482 of CrOC, and quash the said order and restore his right to cross examination.

The Court held that the court below "ought to have adjourned the cross-examination." It further said that the Court should have provided some legal aid counsel to the Petitioner in order to conduct cross-examination of prosecution witnesses and should not have closed the right of the petitioner.

"One cannot lose sight of the fact that it is the petitioner, who has suffered on account of non-appearance of the counsel, as a consequence of which his right to cross-examine prosecution witnesses has been closed. Petitioner who is behind the bars even may not be aware that his counsel was not present on the day when prosecution witnesses were being examined, as such, in such like situation, it is duty of the court to ensure that vested right of the accused, who is unable to defend himself/herself is duly protected," the Bench observed.

Significantly, the State had opposed the quashing of the impugned FIR on following counts:

• There is specific remedy provided under the Statute to lay challenge to order sought to be quashed in the instant proceedings;
• Prayer as has been made herein above, cannot be considered/granted in the instant proceedings filed under S.439 CrPC;
• Order dated 8.4.2019 sought to be quashed in the instant proceedings was passed more than a year back and there is no plausible explanation rendered on record qua the delay in approaching the court.

Dismissing these arguments, the Court held,

"No doubt, order sought to be quashed in the instant proceedings, otherwise is required to be laid challenge, if aggrieved, by way of filing criminal revision under S.397 read with S.401 CrPC, but, as has been taken note herein above, court while exercising power under Ss. 401, 482 and 483 CrPC, can also intervene when it comes to its notice that order passed by a subordinate court, if allowed to sustain, would result in grave miscarriage of justice or same is result of sheer abuse of process of law."

Reliance was placed on the Supreme Court's verdict in Krishnan & Anr. v. Krishanverni & Anr., (1997) 4 SCC 241.

The Bench further observed,

"there is no complete bar on exercise of inherent power by High court, especially where there is abuse of process of law or extraordinary situation comes to notice of the court in the exercise of aforesaid jurisdiction. Plea of limitation raised by Learned Deputy Advocate General is not applicable in the instant case, because, if glaring injustice stares court on its face, it is bounden duty of the court to correct that glaring injustice by passing appropriate orders."

Case Title: Lovely v. State of Himachal Pradesh

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