THE HON’BLE SRI JUSTICEK.C. BHANU
1. This criminal petition is filed under Section 482 Cr.P.C., challenging the order dated 22.12.2011, passed in Crl.M.P.No.1393 of 2011 in C.C.No.702 of 2007, on the file of the
I-Additional Judicial Magistrate of the First Class, Khammam.
2. The brief facts that are necessary for disposal of this petition are as follows:
The petitioner is A1 in C.C.No.702 of 2007. Charge sheet was filed against the petitioner and the 2nd respondent herein/A2, for the offences punishable under Sections 420, 468 and 471 IPC and Section 12 of the Passports Act, 1967. It is stated that the petitioner and A2 engaged separate advocates for contesting their case in the trial Court. It is alleged by the petitioner that when the C.C. was posted for examination, it was noticed that there is a variation in the signatures of PW.10-Panch Witness on Ex.P20 vis-à-vis his deposition; and there is a contradiction in the evidence of PW9-MDO in comparison to her statement under Section 161 Cr.P.C. It is further stated that on the date of cross-examination i.e. 16.11.2010, the petitioner’s counsel was not present, but however, it was typed on the deposition as “Cross by defence counsel for A1 & A2”. Seeking to recall PWs.9 and 10 for further cross-examination by his counsel, the petitioner filed Crl.M.P.No.1393 of 2011, but the same was dismissed by the trial Court on the ground that they were already cross examined on all material aspects. Challenging the same, this petition is filed.
3. Learned counsel for the petitioner contended that, as the counsel appearing for petitioner was not present on the date of cross-examination of PWs.9 and 10, the petitioner filed Crl.MP.No.1393 of 2011 seeking to recall them for the purpose of cross-examination, but the same was dismissed.
4. There cannot be any dispute that the cross-examination of a prosecution witness is a valuable right conferred on an accused, and that right cannot be curtailed. As seen from the deposition of PW.10, it is as if he was cross-examined by the counsel for both A1 and A2 simultaneously. It is stated that the petitioner and A2 engaged separate counsel for defending their case. When A1’s advocate was not present, there was no cross-examination on the part of A1, and therefore, the trial Court ought to have given an opportunity to A1 to cross-examine PW.10. Insofar recalling PW.9 is concerned, he was already cross-examined by the counsel for A1, as seen from the deposition. So, there are no grounds to recall PW.9. Hence, the trial Court is directed to fix a date for the presence of PW.10 for the purpose of cross-examination by the learned counsel for A1.
5. Accordingly, the criminal petition is partly allowed.
JUSTICE K.C. BHANU
19th January, 2012
- Plea to recall witnesses rejected (thehindu.com)
- Cross Examination: Why Pigs Get Fat & Hogs Get Slaughtered (the-barristers-toolbox.com)