Madhya Pradesh High Court: Subodh Abhyankar, J., allowed a petition which was filed aggrieved by the order whereby the right of the petitioner/accused to cross examine the Investigating Officer had been closed.
Petitioner was facing trial for offence under Sections 342, 366, 376 of the Penal Code, 1860 in the Court of IIIrd Additional Sessions Judge wherein the Investigation Officer, was being examined and in the course of his cross examination a question was asked by the counsel appearing of the petitioner/accused which, according to the Judge of the trial court, was a matter of argument only and was not relevant. After which judge of the trial Court directed the counsel appearing for the petitioner not to ask such irrelevant questions, otherwise his right to cross examine the witness could be closed. Unfortunately the next question asked by the counsel for the petitioner, came to be as irrelevant, after which the Judge closed the right of the petitioner/accused to cross examine the witness.
Counsel for the petitioner submitted that the questions which were put to the Investigating Officer were relevant and even otherwise the Judge of the trial court ought not to have closed the right of the petitioner which is a valuable right and all the more important in a serious offence like Section 376 of IPC.
The Court before giving any merits of the case referred to the questions that led to the controversy and opined that order passed by the Judge of the trial court leaves no manner of doubt that viewed from any angle, the impugned order cannot be sustained in the eyes of law as it defeats the entire purpose of the right of an accused to cross examine the witness.
It is trite that cross-examination is the only tool available to a defence lawyer to test the veracity of a prosecution witness, it is the only way out to an accused to clear his name from the alleged offence hence his right to cross examine a witness cannot be curtailed in such a cavalier manner.
The Court however explained that the art of cross examination was very difficult to master and the same takes years of hard work and exposure to trials that one can have some expertise in it. The Court stated it is only through a long and hard exercise of trial and error method that a lawyer learns the art of cross examination but if the judge presiding over the matter is impatient or edgy, it not only culminates into an order like the impugned one, but also hampers the overall learning process or grooming of a lawyer who, before becoming an expert trial court lawyer, is bound to falter many a times by asking irrelevant or inadmissible questions to a witness in the box.
The Court further stated that it is expected from the judges of the Trial court to be patient and tolerant in their approach towards the Trial Court lawyers during the examination of witnesses.
The Court was of the opinion that if Judge was of the opinion that despite his warnings the counsel appearing for the petitioner has continued to ask irrelevant questions, then other modes were also available to the learned Judge of the trial court as are prescribed in the Evidence Act, 1872 from Sections 146 to 152 and in some exceptional cases, the learned judge may also resort to the measure like imposing cost on the counsel for repeatedly and recklessly asking the irrelevant and inadmissible questions but, instead of taking resort of such procedure, the learned Judge has closed the right of the accused to cross examine the witness, which cannot be countenanced in the eyes of law.
The Court set aside the impugned order and directed to recall the Investigating Officer and allow the counsel for the petitioner to cross-examine him.[Sachin v. State of M.P., Miscellaneous Criminal Case No. 35901-2021, decided on 30-07-2021]
Suchita Shukla, Editorial Assistant has reported this brief.
Advocates before the Court:
Counsel for the applicant: Ms Sonali Goyal
Govt. Advocate for the respondent/State: Shri Valmiki Shakargayen
