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Right to fair trial can’t be denied to accused charged with serious offence: Allahabad High Court

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The Allahabad High Court has said that the right of fair trial cannot be denied to an accused, who has been charged with a serious offence.

A Single-Judge Bench of Justice Sanjay Kumar Singh passed this order, while hearing an application under Section 482 filed by Sunil alias Moni and another.

By means of the application under Section 482 of the Code of Criminal Procedure, the applicants have invoked the inherent jurisdiction of the Court for quashing the order dated August 31, 2021 passed by the Additional Sessions Judge, FTC, district Meerut in Sessions Trial (State of U.P. Vs. Sunil alias Moni and another) arising out of Case under Sections 498- A, 323, 504, 506, 376 IPC and Section 3/4 of the Dowry Prohibition Act, PS T.P Nagar, district Meerut.

The facts of the case are that a first information report was lodged by the first informant Ms Kaushal at December 21, 2013 at 1.30 pm, arraigning therein as many as seven accused persons, including her husband, under Sections 498-A, 323, 504, 506, 376 IPC and Sections 3/4 of Dowry Prohibition Act inter alia with the allegations that her marriage was solemnized with Sunil alias Moni on July 11, 2013 and as her husband and in-laws were not satisfied with the dowry, they used to pressurize her for bringing additional dowry.

The report further indicates that on October 22, 2013 her husband Sunil and his brother-in-law Ravindra, in an inebriated condition, barged into her room and forcibly committed rape on her. After investigation, the charge sheet was submitted, cognisance taken and trial commenced.

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During the trial, the examination-in-chief of opposite party No 2 was done on February 7, 2015. Thereafter, her cross-examination was done on October 11, 2018.

On April 14, 2019, when the case was listed for further cross examination, but as the advocate could not cross examine the victim, the opportunity to cross examine the victim was closed.

Thereafter, the applicants moved an application for recalling the witness to cross-examine, but the same has been rejected by the order dated August 31, 2021, which is under challenge in this application.

The main substratum of argument of counsel for the applicants is that due to Covid restriction, counsel appearing on behalf of the accused could not cross-examine the witness.

It is further submitted by the counsel for the applicants that both applicant No 1 (husband) and opposite party No 2 (wife) have mutually filed divorce petition, which has been allowed.

It is also submitted that fair opportunity of cross examination is the legal right of the accused, therefore, not providing the opportunity of cross examination serious prejudice will be caused to the applicants and they will suffer great irreparable loss and injury, therefore, order dated August 31, 2021 is liable to be quashed.

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Per contra, Additional Government Advocate rebutted the submissions of counsel for the applicants by submitting that the trial court while passing the order dated August 31, 2021 has recorded specific finding that applicants have intentionally not cross-examined the witness and the possibility that accused wants to pressurize the victim cannot be ruled out.

Therefore, the order dated August 31, 2021 is not liable to be interfered with and instant application filed by the applicants is liable to be dismissed.

After having heard the arguments of counsel for the parties, the Court observed that there is a duty cast upon the Court to arrive at the truth by all lawful means and one of such means is the cross-examination of witnesses. The accused, who are charged with a serious offence, must not be stripped of his valuable right of a fair and impartial trial because it would be a negation of the concept of due process of law. Regardless of the merits of the case, the Court has not only to look into the case of the prosecution, but has also to keep in mind the defence version.

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In view of the above, the Court opined that the order dated August 31, 2021 is liable to be quashed and applicants are entitled to one opportunity for cross-examination.

Accordingly, the Court quashed the order dated August 31, 2021.

“It is directed that if the applicants file a certified copy of this order within three weeks from today before the court concerned along with a draft of Rs 25,000/- in favour of opposite party No 2, Smt Kaushal, the court below shall fix a suitable date in the matter and on the said date the applicants will be given an opportunity to cross-examine PW-1. On appearance of PW-1, Smt Kaushal for cross examination, the draft shall be handed over to her ”

-the Court ordered.

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