- (1.) The application u/s 482 Cr.P.C. has been filed for setting aside the order dated 16.12.2015 passed by the Sessions Judge, Meerut by which the Application No. 47 Kha, under Section 311 Cr.P.C. has been rejected by the court below denying the opportunity to the applicants to cross examine P.W.11 Meenu.
(2.) Heard applicants' counsel as well as learned AGA and perused the record.
(3.) Submission of counsel for the applicants is that PW-11 Meenu has been examined in-chief but as the counsel who was conducting the trial has returned the brief therefore, the applicants (accused) had to engage another counsel for the cross examination of the witnesses. It was further pointed out that though the examination-in-chief was done on 8.12.2015 but when the adjournment was sought on that date because of the inability of the counsel to continue the trial, another date 10.12.2015 was fixed for the cross examination immediately after two days. Further submission is that this period of adjournment was very short. As it was a murder trial the rights and liability of the applicants, who were facing the trial as accused, must be adjudicated upon after the witnesses were cross examined. Otherwise it is bound to cast serious deleterious/prejudicial effect against the interest of the applicants and would go to the extent of infringing upon the fairness of the trial. But on the next date i.e. 10.12.2015 when adjournment was again sought the court refused to grant the same and closed the evidence. It was also submitted that it is not a case or a matter in which the repeated adjournments might have been sought on behalf of the applicants for cross examination nor is it a case in which the counsel can be said to have deliberately resorted to any delaying tactics and was under any false pretext or pretence indulging in any such exercise which may be said to be unfair or deliberate. In fact, the witness could be procured for cross examination only after enormous efforts were done by the trial court in that regard and she could be brought to be examined as PW-11 after ten prosecution witnesses had already been examined. The emphasis was laid by counsel who tried to elaborate and demonstrate that the facts and circumstances of the case are such that the applicants cannot be accused of any such delaying tactics which could have justly impelled the court to close the evidence and deprive the accused from their most valuable right of cross examination. Counsel for the applicant has tried to show that the adjournment was sought in a bonafide manner because the counsel himself had refused to continue conducting the trial itself. It was in that background that another counsel had got to be engaged. Submission is that in fact even if a new counsel could have been engaged within two days then also it would have been an insufficient period of time for a new counsel to prepare the case and to do justice with the trial of murder. Further submission is that in fact whether the accused applicants withdrew their instructions from the counsel or the counsel himself refused to continue with the trial is not of much significance in the facts and circumstances of the case and in any view of the matter, if a new counsel had to be engaged, a sufficient opportunity should have been provided to the accused to do justice with their cause. It was further submitted that the applicants have absolutely no intention to delay the proceedings of the trial or to prolong the matter and if an opportunity shall be given to them to cross examine the witness, it shall be availed on the first date and no further adjournment shall be sought by them. It was next submitted that if the PW-11 Meenu goes uncross examined, the prejudicial effect cast on the rights of the applicants shall result in complete miscarriage of justice and principles of natural justice and principles of equity and constitutional right to have a fair trial, all shall stand defeated. The contention is that the accused ought to be granted a reasonable opportunity to cross examine the witness which has already been denied to them by closing the evidence after recording the examination-in-chief of the witness.?;