Punjab and Haryana High Court directed the trial court of the learned Additional Sessions Judge to recall the witnesses for cross-examination while the case had reached Section 313 Cr.P.C examination stage.
The bench of Justice Sanjay Kumar while allowed a revision petition, stated in the order that cross-examination is a valuable right given to the accused.
“Denial of the petitioners’ right of cross-examination cannot be countenanced. It is a valuable right given to the accused and such right cannot be diluted in this fashion”
The bench further stated that the trial negated the “fundamental norms of a fair trial”.
“the approach adopted by the learned Additional Sessions Judge negated the very basic and fundamental norms of a fair trial.”
In the matter, in September 2014, the Additional Sessions Judge allowed the state application to produce records while noted that accused will be given “full opportunity” to “cross examine the witnesses”.
“that no prejudice would be caused to the accused as they would be given full opportunity to cross-examine the witnesses and rebut the said record. However, the records seem to have been taken on file without recalling the relevant witnesses.”
Then the petitioner (accused in the case) application under section 311 Cr.P.C to recall the witnesses was disallowed by the learned Additional Sessions Judge in May 2016, observing “no ground was made out to allow further cross-examination”.
Then bench observed that, the opportunity of cross-examination “could not have been snatched“.
“By order dated 24.09.2016, this Court noted the aforestated sequence of events and observed that the opportunity of cross-examination and to avail the benefit granted by the earlier order dated 15.09.2014 could not have been snatched away by directing the petitioners to lead defence evidence.”
The bench further stated that, “the right of the petitioners to cross-examine the witnesses” as “the basic ingredient of a fair trial”, and directed the trial court to not to pass the final order.
“This Court noted that the right of the petitioners to cross-examine the witnesses in the context of the record produced by the prosecution was the basic ingredient of a fair trial and depriving them of such opportunity of cross-examination would cause prejudice to them. The trial Court was accordingly directed not to pass a final order.”
“Section 311 Cr.P.C empowers the Court to summon or examine any person or recall or re-examine any person if his evidence appears to it to be essential to just decision of the case.”, in the order.
The bench pointed out the concern that the learned Additional Sessions Judge overlooked the earlier order and dismissed the application.
“Surprisingly, the learned Additional Sessions Judge seems to have completely overlooked the earlier order dated 15.09.2014 passed by his predecessor and dismissed the application on the ground that the petitioners could lead defence evidence and examine any official from the concerned department.”
The bench directed the trial court of the learned Additional Sessions Judge to recall witnesses “for further cross-examination and proceed thereafter with the case in accordance with law.”