HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No. – 66 A.F.R.

Case :- application U/S 482 No. – 43298 of 2019

applicant :- Raghunath

Opposite Party :- State of U.P. and Another

Counsel for applicant :- Vinay Kumar,Sanjeev Kumar Sharma

Counsel for Opposite Party :- G.A.

Hon’ble Rajul Bhargava,J.

1. Heard Sri Vinay Kumar Advocate, Sri S.K. Sharma Advocate, learned counsels for the applicant, learned A.G.A. for the State and perused the materials and documents on record.

2. The present application under Section 482 Cr.P.C has been filed with a prayer to quash the order dated 04.10.2019 passed by the learned Special Judge (POCSO)/Additional Session Judge, Kanpur Nagar, in Session trial No. 9 of 2013, arising out of Case Crime No. 466 of 2013, under Sections 376, 504, 506, 406 I.P.C., P.S. Kalyanpur, District- Kanpur Nagar, whereby the application under Section 311 Cr.P.C filed by the applicant to recall PW-2, prosecutrix for cross-examination has been dismissed.

3. The applicant is an accused under Sections 376, 504, 506 and 406 I.P.C, presently facing trial. The statement under Section 164 Cr.P.C of PW-2, prosecutrix was recorded on 02.11.2015 and thereafter on account of non-presence of the prosecutrix and mostly at the instance of prosecution; the case got continuously adjourned from 19.12.2015 to 06.10.2018. Thereafter on 03.11.2018 the prosecution proved the statement of the prosecutrix, however, since the counsel of the applicant was not present for cross-examination neither any adjournment application was filed by the defence counsel, as such the concerned court below closed the opportunity of defence to cross-examine the PW-2, prosecutrix vide same order dated 03.11.2018. Subsequently, on 20.12.2018 an application under Section 311 Cr.P.C. was filed, for recall of PW-2 for cross-examination, which has been rejected under the impugned order dated 04.10.2019.

4. It has been argued by learned counsel for the applicant that the applicant and other accused are facing a grave charge of commission of rape and the court below denied the opportunity of cross-examination of the star witness, thus, the testimony of the prosecutrix would remain unrebutted creating grave injustice and prejudice to the applicant. It is further argued that in fact the applicant has been attending the court regularly barring few occasions as is evident from the order-sheet, however, the record would demonstrate that the prosecution itself was proceeding in a lackadaisical manner and on the date when impugned order was passed there was some negligence and remissness on the part of his lawyer for which the applicant cannot be made to suffer and therefore the closure of an opportunity to cross-examine by the trial court that the defence counsel willingly did not appear to cross-examine PW-2, prosecutrix is unfounded. The opportunity to recall PW-2 was moved on 20.11.2018 itself but the same reamin pending and was decided by the impugned order dated 4.10.2019.

5. After carefully perusing the order-sheet on record, I find that the examination-in-chief of the prosecutrix, PW-2 was recorded on 2.11.2015, however, as the statement recorded under Section 164 Cr.P.C. was not on record and the same could not be proved the prosecution sought adjournment and on the request of the prosecution the case was adjourned. Order-sheet also reflects that for about three years the prosecution did not adduce any evidence and produced the prosecutrix on 3.11.2018. It appears that her statement recorded under Section 164 Cr.P.C. was proved by the prosecution and on the very same day as the counsel for the applicant did not appear for cross-examination the court closed the opportunity to cross-examine the prosecutrix. Learned counsel has further argued that till date the evidence of prosecution is going on and therefore the applicant may be provided at least an opportunity to cross-examine PW-2, prosecutrix for the just decision of the case and set-aside the impugned order.

6. In my considered opinion, not affording an opportunity, particularly in view of the fact that the lawyer of the applicant was not available to cross-examine the prosecutrix before the concerned Court below on the date fixed, is not justified.

7. In the case of Rafiq and others vs. Munshilal and others AIR 1981 SC 1400, the Hon’ble Supreme Court dealt with a matter where negligence on part of a counsel had caused adverse consequences to the litigant. The Hon’ble Supreme Court in para 3 of the Judgement, held as under: –

“3.The disturbing feature of the case is that under our present adversary legal system where the parties generally appear through their advocates, the obligation of the parties is to select his advocate, brief him, pay the fees demanded by him and then trust the learned advocate to do the rest of the things. The party may be a villager or may belong to a rural area and may have no knowledge of the court’s procedure. After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. At the time of the hearing of the appeal, the personal appearance of the party is not only not required but hardly useful. Therefore, the party having done everything in his power to effectively participate in the proceedings can rest assured that he has neither to go to the High Court to inquire as to what is happening in the High Court with regard to his appeal nor is he to act as a watchdog of the advocate that the latter appears in the matter when it is listed. It is no part of his job. Mr. A.K. Sanghi stated that a practice has grown up in the High Court of Allahabad amongst the lawyers that they remain absent when they do not like a particular Bench. Maybe he is better informed on this matter. Ignorance in this behalf is our bliss. Even if we do not put our seal of imprimatur on the alleged practice by dismissing this matter which may discourage such a tendency, would it not bring justice delivery system into disrepute. What is the fault of the party who having done everything in his power and expected of him would suffer because of the default of his advocate. If we reject this appeal, as Mr. A.K. Sanghi invited us to do, the only one who would suffer would not be the lawyer who did not appear but the party whose interest he represented. The problem that agitates us is whether it is proper that the party should suffer for the inaction, deliberate omission, or misdemeanour of his agent. The answer obviously is in the negative. May be that the learned advocate absented himself deliberately or intentionally. We have no material for ascertaining that aspect of the matter. We say nothing more on that aspect of the matter. However, we cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted. Therefore, we allow this appeal, set aside the order of the High Court both dismissing the appeal and refusing to recall that order. We direct that the appeal be restored to its original number in the High Court and be disposed of according to law.”

8. Likewise, in the case of The Secretary, Department of Horticulture, Chandigarh and Ors. Vs. Raghu Raj AIR 2009 SC 514, the Hon’ble Apex Court considered the responsibility of a counsel and consequences of non-appearance of a counsel or any default on part of a counsel on a litigant. Such default of counsel cannot visit the party with any penal consequences. The Hon’ble Apex Court in para 27 and 28 of the Judgement, held as under: –

“27. Now, it cannot be gainsaid that an advocate has no right to remain absent from the Court when the case of his client comes up for hearing. He is duty bound to attend the case in Court or to make an alternative arrangement. Non-appearance in Court without `sufficient cause’ cannot be excused. Such absence is not only unfair to the client of the advocate but also unfair and discourteous to the Court and can never be countenanced.

28. At the same time, however, when a party engages an advocate who is expected to appear at the time of hearing but fails to so appear, normally, a party should not suffer on account of default or non-appearance of the advocate. ”

9. It is further pertinent to note here that in view of the fact that the applicant is being tried for a heinous offence under Section 376 I.P.C., as such the cross-examination of PW-2, who is the victim, is absolutely essential to arrive at just decision of the case and the impugned order rejecting the applicant’s application under Section 311 Cr.P.C. has occasioned grave miscarriage and prejudice to the applicant.

10. Considering the above, I am of the view that if the defence is not given proper opportunity to cross-examine PW-2-prosecutrix, who is the victim of the case, it will cause a serious prejudice to defence case as her testimony would go unrebutted. It is a fundamental right of an accused to have fair trial as envisaged under Article 21 of the Constitution and if the impugned order is not quashed then the main object of affording fair trial to accused in the spirit of life and liberty shall be greatly jeopardized. The powers to recall a witness under Section 311 Cr.P.C. is a very wide and could be exercised for the just decision of a case. The Section 311 Cr.P.C. empowers the Courts to recall material witness at any stage of enquiry or trial, if his/her evidence appears to it to be essential to the arrival at the just decision of a case.

11. Considering the facts and circumstances of the case, I am of the view that the ends of justice would be served, if an opportunity is granted to the applicant to cross-examine PW-2-prosecutrix. In view of it, the learned Judge is directed to recall PW-2, prosecutrix by fixing a date within three weeks and ensure her presence through concerned police station. It is made clear that on appearance of PW-2, prosecutrix, the defence shall positively cross-examine her and no further opportunity shall be given, unless the trial court under some exigency deems it fit to adjourn the case for her cross-examination.

12. In view of aforesaid, the impugned order dated 04.10.2019 cannot be sustained and is hereby quashed and the application is accordingly allowed.

13. However, considering the long pendency of trial, the trial Court is hereby directed to expedite the aforesaid trial and conclude the same in accordance with law, considering the provisions of Section 309 Cr.P.C, without granting unnecessary adjournments to either of the parties as expeditiously as possible preferably within a period of four months from the date of production of a certified copy of this Order, if there is no legal impediment.

14. Office is directed to communicate the order to the court concerned forthwith.

Order Date :- 11.2.2020/Vikas