Delhi District Court
Anjana Kashyap vs Rishi Kant Mishra on 18 October, 2023
IN THE COURT OF SH. SUSHIL ANUJ TYAGI,
ADDITIONAL SESSIONS JUDGE-04:CENTRAL,
TIS HAZARI: DELHI
CNR. DLCT01-012846-2022
CR No. 497/2023
Smt. Anjana Kashyap
W/o. Sh. Manoj Sharma
R/o. H. No. 3180, First Floor,
Lal Darwaja, Sita Ram Bazar,
Delhi-110006.
Vs.
Rishikant Mishra
S/o. Sh. Rama Kant Mishra
R/o. 2800, Gali Arya Samaj,
Bazar Sita Ram, Delhi-110006.
Date of institution of Revision : 15.09.2023
Date on which order reserved : 18.10.2023
Date on which order pronounced : 18.10.2023
ORDER
1. The present revision petition u/s. 397 Cr. P.C. r/w 399 Cr.
P.C. has been filed against the impugned orders dated 01.08.2023 and 16.08.2023 passed by the Ld. Trial Court of CR No. 497/2023 Anjana Kashyap Vs Rishi Kant Mishra Page No. 1 Of 8 Ms. Bhujali, Ld. M.M., Tis Hazari Courts, Delhi in CC No. 2552/2020 titled as 'Rishi Kant Mishra Vs. Anjana Kashap, vide which the Ld. Trial Court has closed the right of the revisionist to cross-examine the complainant/respondent and has also dismissed the application for recalling the earlier order.
2. It is contended by the ld. Counsel for revisionist that the ld.
Trial Court in a hurry and mechanical manner passed the impugned orders without appreciating the facts and circumstances of the present case. It is further contended that the ld. Trial Court had failed to consider the grounds mentioned in the application that on 22.07.2023, the matter was adjourned for 01.09.2023 and the Counsel for revisionist noted the next date of hearing as 01.09.2023 and even the e- Court App was showing the same date i.e. 01.09.2023. It is further submitted that the revisionist has also annexed the screen shot of the same alongwith the application but the ld. MM has not considered the same. It is further contended that it is only in the evening of 01.08.2023 that the matter was shown in e-Court App for 01.08.2023 and only then the revisionist came to know about the proceedings of 01.08.2023. It is contended that on the very next date i.e. 02.08.2023, the appropriate application for recalling the order dated 01.08.2023 was moved by the revisionist but the ld. Trial Court dismissed the said application vide order dated 16.08.2023. It is further contended that the cross- examination of the complainant is very much necessary for CR No. 497/2023 Anjana Kashyap Vs Rishi Kant Mishra Page No. 2 Of 8 the proper decision of the case and grave prejudice shall be caused if the revisionist is not allowed to cross-examine the complainant which cannot be compensated in terms of money. It is therefore, prayed that the revision petition may kindly be allowed.
3. On the other hand, ld. Counsel for respondent argued that after considering the conduct of the revisionist, the ld. Trial Court has passed the impugned orders. It is argued that the conduct of the revisionist has not been proper during the trial and after giving proper opportunity, the ld. Trial Court has closed the right to cross-examine. It is further argued that the screen shots of E-Court App may have been fabricated by the revisionist. It is prayed that the present revision petition may kindly be dismissed.
4. This Court has heard the rival contentions from both the sides and perused the judicial record.
5. The judicial record reveals that the accused has been present on every date of hearing before the ld. Trial Court except on 01.08.2023 when the ld. Trial Court proceeded to close the right of the revisionist to cross-examine the complainant. After knowing of the said order, the revisionist filed the application for recalling on the very next day i.e. on 02.08.2023 pleading that the Counsel has noted down the wrong date of hearing i.e. 01.09.2023 and the same was reflected on the e-Court App for which the screen shot was filed alongwith the application. However, the ld. Trial Court dismissed the said application and proceeded to examine the CR No. 497/2023 Anjana Kashyap Vs Rishi Kant Mishra Page No. 3 Of 8 accused u/s. 313 Cr.P.C. Hence, the present revision petition.
6. It is needless to mention that cross examination of the complainant is an invaluable right which is necessary for eliciting the truth and also for establishing the defence. Cross examination is the essential tool for proper appreciation and adjudication of a case. For dispensing effective and efficient justice, cross examination of a witness is must.
7. The purpose of cross-examination of a witness has been succinctly explained by the Constitution Bench of the Hon'ble Supreme Court in Kartar Singh v. State of Punjab (1994) 3 SCC 569 as follows:
"278. Section 137 of the Evidence Act defines what cross-examination means and Sections 139 and 145 speak of the mode of cross-examination with reference to the documents as well as oral evidence. It is the jurisprudence of law that cross-examination is an acid-test of the truthfulness of the statement made by a witness on oath in examination-in-chief, the objects of which are:
(1) to destroy or weaken the evidentiary value of the witness of his adversary;
(2) to elicit facts in favour of the cross-examining lawyer's client from the mouth of the witness of the adversary party;
(3) to show that the witness is unworthy of belief by impeaching the credit of the said witness;
and the questions to be addressed in the course of cross-examination are to test his veracity; to discover who he is and what is his position in life; and to shake his credit by injuring his character."
8. The aforesaid view is reiterated by the Hon'ble Apex Court in Jayendra Vishnu Thakur v. State of Maharashtra (2009) 7 SCC 104 wherein it is observed:
CR No. 497/2023 Anjana Kashyap Vs Rishi Kant Mishra Page No. 4 Of 8 "24. A right to cross-examine a witness, apart from being a natural right is a statutory right. Section 137 of the Evidence Act provides for examination-
in-chief, cross-examination and re-examination. Section 138 of the Evidence Act confers a right on the adverse party to cross-examine a witness who had been examined in chief, subject of course to expression of his desire to the said effect. But indisputably such an opportunity is to be granted. An accused has not only a valuable right to represent himself, he has also the right to be informed thereabout. If an exception is to be carved out, the statute must say so expressly or the same must be capable of being inferred by necessary implication. There are statutes like the Extradition Act, 1962 which excludes taking of evidence vis-à- vis opinion."
9. The importance of cross-examination of witness is therefore cannot be undermined. The fate of the criminal trial depends upon the truthfulness or otherwise of the witnesses and, therefore, it is of paramount importance. To arrive at the truth, its veracity should be judged and for that purpose cross-examination is an acid test. It tests the truthfulness of the statement made by a witness on oath in examination-in- chief. Its purpose is to elicit facts and materials to establish that the evidence of the witness is fit to be rejected or accepted.
10. Affording proper opportunity to cross-examine a witness, sub-serves the requirement of principles of natural justice but also guarantee an important right which is given to the accused persons to defend themselves appropriately. Cross- examination of the witnesses, in the process, is an important facet of this right. It is one of the inalienable component of CR No. 497/2023 Anjana Kashyap Vs Rishi Kant Mishra Page No. 5 Of 8 the right to defence, which is also part and parcel of right to fair trial, which in turn, is a component of right to dignified life guaranteed under Article 21 of the Constitution of India. Credibility of any witness can be established only after the said witness is put to cross-examination by the accused person.
11. Every person has a right to a fair trial by a competent court in the spirit of the right to life and personal liberty which includes his right to defence and cross examination of witnesses in trial. Credibility of any witness can be established only after the said witness is put to cross- examination by the accused person.
12. In Vimal Khanna Vs State, CRL. M.C. 4996/2018, decided on 01.10.2018, Hon'ble High Court of Delhi held that denial of opportunity to cross examine the witnesses violates the Constitutional guarantee to an accused and vitiates the trial. Vimal Khanna (Supra) has been followed in Mohd. Gulzar Vs The State (GNCTD), 2018 (4) JCC 2291 (DHC), wherein after recording that the counsel for the accused was not present on three consecutive dates to cross examine the witness, the Court held that since the right of cross examination is a valuable right, the child's right under Section 33(5) of the POCSO Act has to be balanced with the aforesaid rights of the accused and thus permitted one more opportunity to the accused to cross examine the alleged victim.
13. In the present case, the ld Trial Court had allowed the CR No. 497/2023 Anjana Kashyap Vs Rishi Kant Mishra Page No. 6 Of 8 revisionist to cross examine the complainant vide order dt. 12.05.2023. Thereafter, the matter was adjourned once for the same purpose of cross examination and last opportunity was given to the revisionist. On 01.08.2023, the revisionist did not appear and hence, the right was closed by the ld. Trial Court.
14. The outright denial of right to cross examination by the revisionist would not be in the interest of justice.
15. This Court is of the view that the respondent can be appropriately compensated for the part of delay caused due to the revisionist in the trial. For proper and effective adjudication of the present case and in the interest of justice, this Court is of the considered view that one opportunity may be afforded to the revisionist to cross-examine the respondent subject to cost of Rs. 2,000/- to be paid to the respondent on the date of hearing already fixed before the Ld. Trial Court. Subject to payment of cost, the Ld. Trial Court shall fix a date and afford one opportunity to the revisionist for cross-examination of the respondent. No unnecessary adjournment shall be entertained. If the cross- examination could not be completed in one day, it shall be continued on day to day basis till it is concluded.
16. The present revision petition is allowed in above terms. The parties are directed to appear before the Ld. Trial Court on the date already fixed by the ld. Trial Court.
17. The TCR be sent back to the Ld. Trial Court alongwith the CR No. 497/2023 Anjana Kashyap Vs Rishi Kant Mishra Page No. 7 Of 8 copy of this order.
18. Revision file be consigned to the Record Room.
SUSHIL Digitally signed by SUSHIL ANUJ Announced in the open ANUJ TYAGI Date: 2023.10.18 TYAGI 15:50:53 +0530 Court on 18th October, 2023 (SUSHIL ANUJ TYAGI) ASJ-04/CENTRAL/DELHI 18.10.2023(VR) CR No. 497/2023 Anjana Kashyap Vs Rishi Kant Mishra Page No. 8 Of 8