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]