Case BriefsHigh Courts

Delhi High Court: Brijesh Sethi, J., allowed a criminal writ petition filed under Article 226 of the Constitution read with Section 482 CrPC wherein the petitioner-accused had prayed that he be allowed to confront the Prosecution Witness — Constable Ajit Singh — with his statement recorded under Section 161 CrPC with reference to the answer given by him in his cross-examination: i.e., “diary entry was recorded of my departure from police station on that day. I had instructed the DD Writer to record the entry of my departure. I do not know if the IO has seized the said diary entry.”

The trial court had declined such permission to the petitioner stating that this was a fact that had come across in answer to a question put in the cross-examination and was not a fact deposed to by the witness in his examination-in-chief and, therefore, cannot be confronted as an improvement.

Akshay Bhandari and Digvijay Singh, Advocates, represented the petitioner. Per contra, Sanjay Lao, ASC, with Karan Jeet Rai Sharma, Advocate, opposed the petition on behalf of the State.

Considering the rival submissions, the High Court observed that: “As per section 145 of the Indian Evidence Act, a witness can be contradicted with his previous statement. It is also a settled law that omission to mention the fact in the previous statement is contradiction and witness needs to be confronted with the said facts. Section 162 of the Code of Criminal Procedure contemplates that the previous statement recorded 161 Code of Criminal Procedure has to be confronted to the witness in accordance with Section 145 of the Indian Evidence Act. In these circumstances, if the petitioner is not allowed to confront the witness with his previous statement, prejudice will be caused to him and he will not be able to take advantage of the said contradiction.”

in such circumstances and in the interest of justice, the Court allowed the petition and directed the trial court to permit the petitioner to confront the witness concerned as prayed for. [Deepak Kumar Chaudhary v. State, 2019 SCC OnLine Del 11321, decided on 07-11-2019]

Case BriefsHigh Courts

Chhattisgarh High Court: Sanjay K. Agrawal, J., allowed a second appeal against the order of the trial court as well as the First Appellate Court whereby the suit brought by the plaintiffs (respondents herein) for declaration of title, permanent injunction, partition and possession of the suit property was decreed.

It is pertinent to note that during the pendency of the said suit, affidavit-evidence under Order 18 Rule 4 CPC (recording of evidence) was filed by the plaintiffs. On two subsequent dates when the matter was posted, the plaintiff — Kunti Bai — was partly cross-examined. However, after that, she could not appear before the trial court though the matter was fixed for evidence from time to time. Ultimately, her opportunity to lead evidence was closed and thereafter, the suit was decreed in favour of the plaintiffs.

The question for consideration of the High Court was whether the affidavit-evidence of the Kunti Bai, which was not subjected to cross-examination, could be said to be “evidence” within the meaning of Section 3 (interpretation clause) of the Evidence Act.

The Court was of the opinion that a careful perusal of Section 3 would show that the affidavit is not included in the definition of “evidence”, and can be used only if the Court permits it for sufficient reasons. An affidavit can be termed to be an “evidence” within the ambit of Section 3 only in those cases where the same is filed at the instance or under the direction of the Court or law specifically permits for proof of anything by affidavit. Thus, the filing of an affidavit or one’s own statement, in one’s own favour, cannot be regarded as sufficient evidence for any Court.

Reliance was placed on Ayaaubkhan Noorkhan Pathan v. State of Maharashtra, (2013) 4 SCC 465, wherein the Supreme Court had held that affidavit can be relied upon when the deponent is available for cross-examination in terms of Order 18 Rule 4 CPC. The High Court held that: “Thus, it is now well settled that affidavit is not evidence within the meaning of Section 3 of the Evidence Act unless an opportunity to effectively cross-examine to the person(s) examined is given to another side as provided in Order 18 Rule 4(2) of the CPC.”

In the instant case, since the defendants did not get a proper opportunity to cross-examine Kunti Bai, the court held that the affidavit filed by her under Order 18 Rule 4 remained an affidavit and did not turn into evidence. In such view of the matter, the impugned order was set aside and the matter was remanded back to the trial court to give an opportunity to the defendants to cross-examine Kunti Bai and other prosecution witnesses. [Premlal v. Kunti Bai, 2019 SCC OnLine Chh 107, decided on 11-09-2019]

Case BriefsHigh Courts

Karnataka High Court: B.A. Patil, J. while allowing the appeal set aside the Judgment of the trial court with a direction to recall the witnesses who have not been cross-examined.

Asif Hussain, the appellant/accused in the instant case preferred this appeal against the judgment and order of his conviction and sentence for the offence punishable under Section 397 of Penal Code, 1860 passed by the Additional City Civil and Sessions Judge, Bengaluru City.

Sirajuddin Ahmed, Counsel for the appellant submitted that the trial court did not give full opportunity to the accused to cross-examine all the witnesses and passed the impugned order erroneously. 

In consonance to the Counsel for the appellant, M. Divakar Maddur, High Court Government Pleader submitted that the evidence of PW7 was not fully chief examined and for this no reason was assigned. 

The Court after analyzing the evidences given in the trial court observed that witnesses were examined. But, after the Public Prosecutor was done with the examination-in-chief, counsel for the accused took time for preparation. However, the court below rejected the prayer without any justifiable reasons and took that there is no cross examination. Moreover, PW7 was examined-in-chief in part. The cross examination of PWs 9 and 10 was not even recorded. The material witnesses who were examined before the Court were also not cross-examined. Thus, it was clear that principles of natural justice were not followed. 

The Court remitted back the matter and directed the trial court to expeditiously dispose of the case.[Asif Hussain v. State, 2019 SCC OnLine Kar 1600, decided on 04-09-2019]

Case BriefsHigh Courts

Delhi High Court: In view of the failure of justice on account of lack of effective cross-examination of prosecution witnesses, Sanjeev Sachdeva, J. quashed the trial court’s order convicting and sentencing the accused (appellant) for offence punishable under Section 6 of the Protection of Children from Sexual Offences Act, 2012.

The appellant had challenged the order of the trial court whereby he was convicted and sentenced under POCSO Act. He contended that the manner in which the trial was conducted showed that the principles of natural justice were violated and he was declined a fair opportunity of being defended.

The High Court found that some prosecution witnesses were not cross-examined and for others, there was very sketchy cross-examination. It was noted that the manner in which cross-examination was conducted on part of the accused by the amicus curiae appointed by the trial court clearly showed that he made no serious efforts to defend the accused. It was observed: “If the Amicus Curiae does not or is not in a position to effectively provide assistance to an accused, the Trial Court is obliged to correct the situation. Even the trial court failed to take any remedial steps. The manner in which the cross-examination has been conducted has clearly led to failure of justice.” Holding it to be a clear case of failure of justice, the Court quashed the impugned order and remanded the matter to the Court of Additional Sessions Judge for re-trial from the stage of cross-examination of prosecution witnesses.

Before departing with the case, the High Court recorded appreciation for the assistance rendered by Adit S. Pujari, Advocate appearing on behalf of Delhi High Court Legal Services Committee and also by Meenakshi Dahiya, Additional Public Prosecutor for the State. [Dev Kumar Yadav v. State (NCT of Delhi), 2019 SCC OnLine Del 8485, decided on 10-05-2019]

Case BriefsHigh Courts

Delhi High Court: Sunil Gaur, J., while putting petitioners to terms, allowed their application filed under Section 311 CrPC to recall three prosecution witnesses for cross-examination.

Earlier, the trial court had dismissed the petitioner’s application for recall of prosecution witnesses. Dinesh Sah and Rajeev Rajan, Advocates appearing for petitioners submitted that the witnesses sought to be recalled were material witnesses who could not be cross-examined due to the negligence of the previous counsel. It was submitted that petitioners may be put to terms for their negligence, however, recalling of prosecution witnesses was essential. Per contra, Izhar Ahmad, Additional Public Prosecutor supported the trial court’s order.

On perusal of the record, the High Court found that the petitioners did not exercise due diligence in defending themselves before the trial court and the blame was sought to be put on the previous counsel, whose name was not disclosed. Be that as it may, the Court was of the view that cross-examination of prosecution witnesses was necessary for a just decision of the case. Deeming it appropriate that petitioners be put to terms, the Court allowed their application filed under Section 311 while inflicting a cost of Rs 30,000 to be deposited with Prime Minister’s Relief Fund. [Ashok v. State, 2019 SCC OnLine Del 7059, dated 04-02-2019]

Case BriefsHigh Courts

Kerala High Court: A Single Judge Bench comprising of Sunil Thomas, J. set aside the order of Sessions Judge requiring advance submission of questions to be put to witness in cross-examination holding the same to be improper.

The instant petition was preferred by an accused facing trial for offences punishable under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) alleging lack of fair trial. It was submitted that, after the conclusion of victim’s examination-in-chief, a questionnaire of cross-examination was advanced to the Court, copy whereof was also furnished to the prosecutor and the case was adjourned after ten days. The petitioner contends that this procedure was in total disregard of principles of cross-examination as it would enable the prosecutor to prepare the witness to answer the questions.

The High Court observed that as per Section 33 (2) of the POCSO Act, counsel appearing for the accused, while recording the examination-in-chief, cross-examination or re-examination of the child, is obliged to communicate the questions to be put to the child to the Special Court, which shall, in turn, put those questions to the child. 

While the Act does insulate a victim against aggressive cross-examination, the court has to ensure that the relevant questions which may be embarrassing to the witness are decently conveyed to him without leaving out the spirit and soul of the said question, to ensure fair trial of the accused.

Section 33 of the Act does not empower the Court to demand a questionnaire from either side in advance before the examination of witness. Such an act would negate the right of the accused to a fair trial since, defeat the very purpose of cross-examination and make it an empty formality.

In view of the above, the petition was allowed with a direction to the court below to permit the counsel for petitioner to continue cross-examination in accordance with law.[Unnikrishnan R v. Sub Inspector of Police,2018 SCC OnLine Ker 4642, decided on 31-10-2018]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of Sanjeev Sachdeva, J. allowed a petition filed against the order of the trial court whereby the two of the prosecution witnesses were discharged only after recording of their testimony and without cross-examination.

The trial court had recorded the testimony of the said witnesses and thereafter discharged them. The petitioner submitted that sufficient opportunity was not granted for the defence counsel to be ready for cross-examination of those witnesses. Aggrieved by such discharging of the witnesses, the present petition was filed by the accused-petitioner.

The High Court perused the orders passed by the trial court. They, inter alia, showed that the matter was adjourned from time to time for examination and cross-examination and the same was being deferred either for want of FSL report or securing the presence of witness. It was seen that one of the witnesses was discharged after recording the testimony without cross-examination as on that date only a proxy counsel was present who sought passover or an adjournment which was not granted. Similarly, the opportunity for cross-examination of the other witness was not sufficient as the FSL report was produced by the Investigating Officer for the first time on the same date the witness was examined and discharged. In such facts and circumstances, the Court was satisfied that the petitioner was not afforded a sufficient opportunity to be ready for cross-examination. Thus, the petition was allowed and the trial court was directed to re-summon the witnesses concerned. [Deepak Kumar v. State (NCT of Delhi),2018 SCC OnLine Del 11517, dated 25-09-2018]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of J.R. Midha, J. allowed a petition filed against the order of family court whereby opportunity of the petitioner to cross-examine the respondent was closed.

The family court, by its impugned judgment also dismissed the petitioner’s application for waiver of costs of Rs 10,000. Learned counsel for the petitioner sought an opportunity to cross-examine the respondent on payment of costs as imposed by the family court. Learned counsel for the respondent opposed the prayer.

The High Court relied on A. v. T., 2018 SCC OnLine Del 9395, wherein it was observed that it is very difficult to find the truth if the right of cross-examination of any witness is closed in undue haste. Further, cross-examination is a powerful weapon by which the defence can separate the truth from falsehood by piercing through the evidence given by a witness. In view of these categorical observations, the High Court held that one opportunity should be granted to the petitioner to cross-examine the respondent. The date for cross-examination before the family court was fixed, and orders made accordingly. [P. v. R.,2018 SCC OnLine Del 10052, dated 19-07-2018]

 

Case BriefsHigh Courts

Madras High Court: Setting aside the decision of the Court of Special Judge under the Prevention of Corruption Act, refusing the petitioner accused the right to recall an important witness for cross-examination, the Bench of Dr. P. Devadass, J., allowed the petitioners to recall the witness for cross-examination cautioning that the cross-examination should be completed as soon as possible and that deferring the same would not be permitted. However, taking the opportunity to ponder upon the conflict between an accused person’s constitutionally guaranteed right of defense, the duty of the State to punish the offenders and the plight of the victims/witnesses due to prolonged trials, the Court observed that a court should be magnanimous in protecting the rights of the accused, however it must ensure that this magnanimity does not become a headache for the victims of the offences and the witnesses, thereby resulting in failure of justice.

The petitioners  were charged for the offence under Sections 7 and 13(2) read  with Section 13(1)(d) of  the Prevention of Corruption Act, 1988. The witness that the petitioners were seeking for cross-examination was a trap operation witness. However, the Special Judge referring to Vinod Kumar v. State of Punjab, (2015) 3 SCC 220, refused to entertain the recall petition. It was contended by the petitioners that the trial court cannot deny the accused their right to cross-examine a witness. Moreover, the Special Court has misunderstood the Supreme Court dictum in Vinod Kumar thinking that recalling of witnesses for cross-examination is not permitted at all. However, the respondents rebutted by contending that, the petitioners have not cited any proper reason for the recall of witness.

Perusing the contentions, the Court observed that in Vinod Kumar case, the Supreme Court had raised concerns over unnecessary adjournments in the trial courts, thereby deferring the cross-examination of witnesses; however it was never said that recalling witnesses for cross-examination is prohibited. In fact the Supreme Court advised the trial courts to avoid unnecessary adjournments and try to finish the cross-examination of the witnesses on the same day or at least on the next day. The Court further observed that the examination-in-chief of the trap operation witness has already been conducted, however, if under Section 138 of Evidence Act, the testimony is not tested at the altar of cross-examination, then it shall cause a great prejudice to the petitioner accused. However the Court addressed the sufferings the victims and the witnesses face during the trial. The Court stated that victims/witnesses are guests who assist the courts in fact finding, therefore deferring their examination on flimsy grounds by the trial courts, and employment of mean tricks by the accused to dilute their testimony should be avoided to uphold the ends of justice.  [Vincent v. The State, 2016 SCC OnLine Mad 9048, decided on 22.08.2016]