CRL.M.C./2366/2011 of SACHIN KUMAR Vs STATE

#41% 27.07.2011

Present:Mr.Vikrant Sharma, Advocate for the petitioner.Mr. Sunil Sharma, APR for the respondent/State.

+Crl.M.A.No.8644/2011(Exemption)

Exemptionallowed, subject to all just exceptions.

Applicationstands disposedof.

CrI.M.C.2366/2011& CrI.M.A.8643/2011

Sachin Kumar, the petitionerherein,is undergoingtrial in SessionsCaseNo. 55/2010,FIR No. 137/2009,P.S.Kapasheraon chargeunderSection307IPC.On ir*"February,2011,PW4 KrishanMohanwasexamined.Counselfor the petitionerwas not availableat that time, assuch,thepetitionerwas askedto crossexaminethe witnesshimself,whichopportunitywasnot availedby thepetitionerbeingalayman.Thus, the witness was discharged.

ThepetitionermovedanapplicationunderSection311CrPCrequestingfor recallingof PW4 for cross examinationon the ground thatwitnessPW4wasexaminedinabsenceofthedefencecounsel.Application was dismissedby the court vide order dated 07^^ May, 2011.Another applicationwas moved under Section 311 CrPC seekingrecallingof PW4 for cross examination,which was also dismissedon 06"" July, 2011.

Feelingaggrievedbytheaforesaidorder,thepetitionerhasapproachedthis court seekingsettingasideof ordersdated07'^ May,

2011 & 06'^ July, 2011 of learned Additional Sessions Judge and directionfor recalling of PW4 for the purpose of cross examination.

Learnedcounselfor the petitionerhas referredto the judgmentofSupreme Court in the matter of Sukur Ali (Md.) Vs. State of Assam,2011 III AD (SC) 194 wherein the Supreme Court, highlightingthat right ofthe accused to be defendedby counsel is fundamentalright enshrinedin Article 21 of the Constitution,observed that the court should not decidea criminalcase against the accusedin absenceof his counsel.Learnedcounselhassubmittedthatontherelevantday,counselfortheaccused/petitionerwas busy in some other court, as result he could notappearbefore the trial court at the time of examinationof PW-4.It iscontendedthat absenceof lawyerwas unintentionaland, for that thepetitionershouldnot be penalisedby preventinghim fromavailingtheright to cross examinethe witness.Petitionerhas alsoreliedupon thejudgmentof this Court in SanjeevNanda Vs. State of NCT of Delhi,2007(3) JCC 2156andurgedthattheimpugnedordersof learnedAdditionalSessionsJudgebe setasideanddirectionsbeissuedforrecallingof PW-4 for the purpose of cross-examination.

LearnedAPP submitsthatthoughhe is not opposingthe petitionbut the fact remains that on 11'^'^ February,2011, when witnessKrishanMohanwasexaminedasPW4,hemadeit clearthathewasundertreatmentfor injurysustainedin the incidentand as such,it was notpossibleforhim to comeagainandagainfromBihar.LearnedAPPsubmits that perhaps this was the reason which prevailedupon the mind

of learned AdditionalSessions Judge while declining the applicationunderSection311 CrPC.

I have consideredthe rival submissionsand perusedthe record.The right of the accused to be defendedby counselin criminaltrial isafundamentalrightguaranteedtohimunderArticle21oftheConstitution.This is obvious from the observationof the Apex Court in thematterof SukurAM (Md.)Vs.Stateof Assam(supra),whichisreproducedthus:

"Court should not decidea criminalcase against theaccused in the absence of counsel.If the counsel for theaccusedisabsent,forwhateverreason,thecourtinstead of decidingthe case at the back of the counselshouldappointan amicuscuriae.Therightof , theaccusedto be defendedby counsel is fundamentalright enshrined under Article 21 of the Constitution".

Thus, takinginto considerationthe fact that PW4 KrishanMohanis thestar witnessof the prosecution,I am of the view that interestof justicedemandsthat thepetitionermay be permittedrecallof PW4 for thepurpose of cross examination.The court, however, cannot ignore the factthat the witness,namely,Krishan Mohan PW-4 is resident of Bihar and itwould causeunnecessaryinconvenienceto him to come againto thecourt for cross-examination.Thus, the petition is allowed, subject to costof?5000/-tobepaidbythepetitionertothewitnessfortheinconvenience and harassmentwhich would be caused to him for comingagain from Bihar for his examination.

It is clarifiedthat cross examinationof PW4 KrishanMohan shall berecordedon singledate of hearingand the petitionershallnot seekadjournmenton the relevant date.

Petition stands disposedof.

Copy of the order be sent to the concernedTrial Court for necessaryinformationand compliance.

JULY 27, 2011/akb

(AJIT BHARIHOKE)JUDGE