Right To Cross-Examine A Witness Can Be Denied Only In Exceptional Circumstances: Allahabad High Court

The Allahabad High Court has observed that the right to cross-examine a witness is a right that may be denied only in exceptional circumstances or in such circumstances where the order sheet reveals that the other side/ party is habitual in seeking adjournments for one reason or another.

The bench of Justice Rajesh Singh Chauhan passed this order while setting aside an order of the trial court wherein the opportunity of cross-examination for the applicant (accused in a Gangster Act Case) of a prosecution witness was closed despite the fact that the applicant had moved an adjournment application on the ground that his counsel was busy in some other court.

It was the case of the applicant/accused that the subordinate court, vide order dated 17.11.2022, recorded the chief statement of PW-11. Now, since at that particular point in time, the counsel for the applicant was busy in another court, therefore, one application was filed on his behalf to adjourn the case as his counsel was not able to cross-examine PW-11.

However, the applicant's counsel further submitted, the trial court rejected the said application for the reason that the counsel for the present applicant had not indicated about the court where he was busy.

Thereafter, the applicant filed a recall application under Section 311 CrPC to cross-examine PW11, however, the same was rejected on the ground that cases relating to MP/MLA should be disposed of with expedition in terms of directions being issued by the High Court and said the matter was old, therefore, an adjournment was not possible. 

Challenging both the orders, the applicant moved to the High Court arguing that one short time should be given to the counsel for the applicant in terms of Section 273 Cr.P.C., which clearly provided that except as otherwise expressly provided, all evidence taken in the court of the trial or other proceedings shall be taken in the presence of the accused or when his personal attendance is dispensed with, in the presence of his pleader.

Taking into account the facts of the case and the mandate of Section 273 CrPC, the High Court, at the outset, noted that it was not a case where frequent adjournments have been sought from the side of the present applicant, rather it was the first application for adjournment filed on 17.11.2022 when the chief-examination of PW-11 had been recorded.

The Court further noted that on the same date, such an opportunity had been closed without giving any short adjournment, therefore, the Court added, the same may not be considered as a proper exercise being carried out by the learned trial court.

"Learned counsel might have been busy in another court at particular point of time and if such application was filed before the learned court below, that application should have been considered properly in the light of statutory prescription of Section 273 Cr.P.C. vis-a-vis in the light of the fact that the cross-examination of a witness is a right of the other side. Such right may be denied only in exceptional circumstances or in such circumstances where the order sheet reveals that the other side/ party is habitual in seeking adjournments for one reason or another," the Court added as it set aside both the orders in question passed by the Additional Session Judge Court No.05, Pratapgarh.

Consequently, the Court directed the trial court to provide one opportunity to the present applicant/ his counsel to cross-examine PW-11 fixing a single date, maybe a short date, and if on that date, said prosecution witness could not be examined for any lapse on the part of the present applicant, any appropriate orders may be passed indicating the reason.

Case title - Brijeash Saurabh Mishra @ Brijesh Mishra vs. State Of U.P. Thru. Prin. Secy. Home Lko. And Another [APPLICATION U/S 482 No. - 216 of 2023]

Case citation: 2023 LiveLaw (AB) 32

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