Duty Of Trial Court To Give Time To Accused To Engage Counsel For Cross Examining Prosecution Witnesses: Karnataka High Court

The Karnataka High Court has set aside an order of conviction handed down to an accused found guilty of outraging the modesty of a woman as the accused could not cross examined the prosecution witnesses.

A single judge bench of Justice K Natarajan remanded the matter back to the Trial Court for fresh consideration, observing,

“Of course, speedy trial is mandatory, however, denial of providing an opportunity to cross-examine the prosecution witnesses, which is nothing but denial of fair trial under Guaranteed Article 21 of the Constitution of India.”

The victim alleged that petitioner-accused caught hold of her while she was walking on a road and touched her private parts. Thereafter, victim claimed she followed the petitioner and handed him over to the Police, which booked him under Sections 354(A) of IPC and Section 12 of POCSO Act, 2012.

The prosecution examined 10 witnesses to bring home the guilt of the petitioner. However, counsel for the petitioner-accused remained absent and did not cross examine the witnesses. The Trial Court then passed the judgment finding the petitioner guilty.

Petitioner argued that none of the prosecution witnesses were cross examined and even legal services was not provided by the Trial Court.

In this backdrop the Court remarked,

“It is the duty of the Court to afford an opportunity for cross examination of the witnesses by giving some time to engage his own counsel for advancing his case. The Trial Court without providing an opportunity for cross-examination of the prosecution witnesses ought not to have convicted the accused."

The bench noted that evidence of prosecution witnesses was not challenged by the petitioner-accused as they could not be cross-examined. It held,

“Fair trial is the main object of the criminal procedure and so also the Fundamental Right guaranteed under Article 21 of the Constitution of India mandates the same, which is denied by the Trail Court by not allowing the accused to appear through the counsel for cross examining all the witnesses.”

Accordingly, the Court allowed the appeal and directed the Trial Court to provide an opportunity to the accused to engage a counsel to cross examine the prosecution witnesses and to proceed in accordance with law. The court also granted bail to the accused.

Case Title: Harish Kumar A And State of Karnataka & ANR

Case No: Criminal Appeal no. 1167 of 2023

Citation: 2023 LiveLaw (Kar) 264

Date of Order: 07-07-2023

Appearance: Advocate H K Pavan for appellant.

HCGP S Vishwa Murthy for R1.

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