ASHOK KUMAR Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) An important question of law has been raised by the learned counsel appearing for the petitioner. The question is : Whether an accused can claim cross-examination to prosecution witnesses as of right at a subsequent stage of trial, if he failed to avail this right when opportunity was provided ?

(2.) In order to appreciate the problem, it is necessary to give necessary facts. The husband-petitioner is facing trial under S. 498-A, IPC in the Court of Additional Munsiff and Judicial Magistrate No. 1, Jaipur City, Jaipur. 2/07/1993 was fixed for recording prosecution evidence. On this date, the witnesses, Smt. Sushila and Smt. Sunder appeared for their evidence. Their examination-in-chief was recorded and cross-examination was deferred for the next date on the request of the accused on the ground that his counsel was not available. On the next date i.e. 3/07/1993, the witnesses again appeared in the Court, but, instead of cross-examining them, the petitioner sought adjournment on the ground that his counsel has gone to Bombay. The learned Magistrate, in the interest of justice, granted adjournment on payment of costs of Rs. 200.00 and next date was fixed as 14/07/1993 for cross-examination of these two witnesses. On 14-7-93 again the above witnesses appeared in Court but they were not cross-examined and an application was moved by the petitioner with a prayer to adjourn the case on the ground that his counsel was busy in some other Court in a murder case. The prayer was declined by the Magistrate presumably on the ground that the petitioner was given sufficient opportunity to cross-examine the witnesses but he did not avail the same. Thereafter, on 8-10-93 an application under S. 311, Cr. P.C. was moved by the petitioner to recall the aforesaid two witnesses, Smt. Sushila and Smt. Sunder for their cross-examination but the same was rejected vide impugned order which is under challenge in this petition.

(3.) It was strongly urged by the learned counsel for the petitioner that the petitioner is facing trial under S. 498-A, IPC and it involves jeopardy to his liberty, as he may be sentenced to jail on conviction. Learned counsel, therefore, contended that the right to cross-examine the prosecution witnesses is a fundamental right of the accused and if that right is not availed by the accused for non-availability of his counsel for one reason or the other, the cross-examination should he provided at a subsequent stage or legal assistance at State's expenses should be provided to do the needful. Counsel contended that the petitioner had no control on his Lawyer if he chose to go Bombay instead of attending his case. It was then submitted that in case the petitioner is convicted on the evidence of these two witnesses in the absence of their cross-examination, such conviction shall he illegal as no one can be convicted without being properly defended. According to the learned counsel, this court in exercise of inherent powers under S. 482, Cr. P.C. should allow cross-examination of the witnesses for the ends of justice. Reliance is placed on the decision of the Court in Salim v. State of Rajasthan 1989 RCC 337.