Accused Charged With Serious Offence Must Not Be Stripped Of The Valuable Right Of Impartial Trial: Allahabad HC

The Allahabad High Court on Wednesday observed that an accused who is charged with a serious offence, must not be stripped of his/her valuable right of a fair and impartial trial because it would be a negation of the concept of due process of law.

The Bench of Justice Sanjay Kumar Singh observed thus while dealing with a 482 CrPC Application filed against the order of Additional Sessions Judge, FTC, district Meerut who rejected the Rape accused prayer to recall the witness/victim for the purpose of cross-examination.

The case in brief

Essentially, a first information report was lodged at the instance of the first informant in December 2013 under Section 498-A, 323, 504, 506, 376 IPC and 3/4 of Dowry Prohibition against seven accused persons including her husband.

She alleged that her marriage was solemnized with Sunil alias Moni (applicant herein) and since her husband and in-laws were not satisfied with the dowry, they used to pressurize her for bringing additional dowry.

It was further alleged that on October 22, 2013, her husband and his brother-in-law in an inebriated condition barged into her room and forcibly committed rape on her. After the investigation, the charge sheet was submitted, cognizance was taken and trial commenced.

During the trial, the examination-in-chief of opposite party No. 2 was done in February 2015, thereafter, her cross-examination was done in May 2018 and October 2018. Further, in April 2019, when the case was listed for further cross-examination, the advocate could not cross-examine the victim, and therefore, the opportunity to cross-examine the victim was closed.

Thereafter, the applicants moved an application for recalling the witness PW-1 to cross-examine, but the same was rejected by the impugned order dated 31.8.2021, which was under challenge in the instant application.

The counsel for the applicants argued before the Court that due to Covid restriction, the counsel appearing on behalf of the accused could not cross-examine the witness. It was also submitted that a fair opportunity of cross-examination is a legal right of the accused, therefore, not providing the opportunity of cross-examination serious prejudice will be caused to the applicants.

Court's order

Against this backdrop, the Court, at the outset, stressed that there is a duty cast upon the Court to arrive at the truth by all lawful means and one of such means is the cross-examination of witnesses.

Further, noting that regardless of the merits of the case, the Court has not only to look into the case of the prosecution but has also to keep in mind the defence version, the Cpurt opined that order dated 31.8.2021 was liable to be quashed and applicants were entitled to one opportunity for cross-examination.

In view of this, the impugned order was quashed and it was directed thus:

"...if the applicants file a certified copy of this order within three weeks from today before the court concerned along with a draft of Rs. 25,000/- in favour of opposite party No. 2...the court below shall fix a suitable date in the matter and on the said date the applicants will be given an opportunity to cross-examine PW-1. On the appearance of PW-1, Smt. Kaushal for cross-examination, the draft shall be handed over to her."

Case title - Sunil @ Moni And Another v. State of U.P. and Another
Case citation: 

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