Himachal Pradesh High Court
Reserved On: 10.06.2024 vs Manoj Kumar And Another on 19 June, 2024
2024:HHC:3646 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Revision No. 485 of 2023 .
Reserved on: 10.06.2024 Date of Decision: 19.06.2024.
Om Prakash ...Petitioner
Versus
Manoj Kumar and another
Coram
r to ...Respondents
Hon'ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 Yes.
For the Petitioner : Mr. Rakesh Chauhan, Advocate. For the Respondents : Mr. Sanket Sankhyan, Advocate, for respondent No.1.
Mr. Ajeet Sharma, Deputy Advocate General, for respondent No.2.
Rakesh Kainthla, Judge The present revision is directed against the judgment dated 31.8.2023, passed by learned Sessions Judge, Chamba (learned Appellate Court) in Criminal Appeal No. 30 of 2023, vide which the judgment and order dated 19.5.2023, passed by learned Chief Judicial Magistrate, Chamba (learned Trial Court) 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 19/06/2024 20:33:26 :::CIS 2were set aside. The matter was remanded to the learned Trial Court with a direction to afford an opportunity to the .
respondent (accused before the learned Trial Court) to cross-
examine the witnesses. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).
2. Briefly stated, the facts relevant for the adjudication of the present revision are that the complainant filed a complaint against the accused stating that he had invested more than ₹30.00 lacs in various schemes suggested by the accused.
He paid the amount to the accused but subsequently found that the accused had not deposited the amount paid by him. When the complainant demanded the money back, the accused issued a cheque, which was dishonoured with the memo 'exceeds arrangement'. The complainant served a notice upon the accused and the accused failed to pay the amount. Hence, the complaint was filed by him before the learned Trial Court.
3. Learned Trial Court put notice of accusation to the accused. The complainant filed his affidavit and tendered various documents in evidence. Learned Trial Court convicted ::: Downloaded on - 19/06/2024 20:33:26 :::CIS 3 the accused for the commission of an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (NI Act) and .
sentenced him to undergo simple imprisonment for two years and pay compensation of ₹40.00 lacs.
4. Being aggrieved from the judgment and order the accused preferred an appeal which was decided by learned Sessions Judge, Chamba. (Learned Appellate Court). As per the complainant, the accused was to file an application under Section 145(2) of the NI Act for cross-examining the witnesses;
however, the failure to allow the accused to cross-examine the complainant was an inherent infirmity. Therefore, the judgment and order passed by the learned Trial Court were set aside and the matter was remanded to the learned Trial Court to afford an opportunity to the accused to cross-examine the witnesses of the complainant.
5. Being aggrieved from the judgment, the complainant has filed the present revision asserting that the learned Appellate Court erred in setting aside the judgment and order passed by the learned Trial Court and remanding the matter to the learned Trial Court for enabling the accused to cross-
::: Downloaded on - 19/06/2024 20:33:26 :::CIS 4examine the witnesses. The accused never applied under Section 145(2) of the NI Act for cross-examination of the witnesses and .
he had no right to cross-examine the complainant's witnesses without any such application. Therefore, it was prayed that the present revision be allowed and the judgment passed by the learned Appellate Court be set aside.
6. I have heard Mr. Rakesh Chauhan, learned counsel for the petitioner/complainant, Mr. Sanket Sankhyan, learned counsel for respondent No.1-accused and Mr. Ajeet Sharma, learned Deputy Advocate General for respondent No.2-State.
7. Mr. Rakesh Chauhan, learned counsel for the petitioner/complainant submitted that the learned Appellate Court erred in remanding the matter to the learned Trial Court.
The accused never filed any application for seeking cross-
examination of the witnesses and it was not permissible for the leaned Appellate Court to grant opportunity to him; therefore, he prayed that the present revision be allowed and the judgment passed by the learned Appellate Court be set aside.
8. Mr. Sanket Sankhyan, learned counsel for respondent No.1/accused submitted that the learned Trial Court ::: Downloaded on - 19/06/2024 20:33:26 :::CIS 5 erred in denying the right of cross-examination to the accused.
Learned First Appellate Court had rightly held that there was .
inherent infirmity in the proceedings before the learned Trial Court and he prayed that the revision be dismissed.
9. Mr. Ajeet Sharma, learned Deputy Advocate General for respondent No.2-State supported the submissions of Mr. Sanket Sankhyan, learned counsel for respondent No.1- accused and submitted that cross-examination is an important right of the accused, which cannot be denied to him.
10. I have given considerable thought to the submissions at the bar and have gone through the records carefully.
11. It is undisputed that the accused was not allowed to cross-examine the witnesses. The complainant appeared as (CW1) on 25.1.2022 and tendered his affidavit and documents in the evidence. There is nothing on record to show that an opportunity for cross-examination was afforded to the accused.
Thus, the learned Appellate Court had rightly held that the opportunity of cross-examination was not afforded to the accused.
::: Downloaded on - 19/06/2024 20:33:26 :::CIS 612. It was submitted that the accused did not file any application under Section 145(2) of the NI Act, which was .
required as per the judgment of the Hon'ble Supreme Court in Indian Bank Assn. v. Union of India, (2014) 5 SCC 590. Heavy reliance was placed upon the following directions issued by Hon'ble Supreme Court: -
"23.4. The court should direct the accused, when he appears to furnish a bail bond, to ensure his appearance during the trial and ask him to take notice under Section 251 CrPC to enable him to enter his plea of defence and fix the case for defence evidence, unless an application is made by the accused under Section 145(2) for recalling a witness for cross-examination. "
13. This judgment was considered by this Court in Ashwani Kumar Sharma Vs. M/s Himachal Fabrics, Cr.MMO No. 540 of 2018, decided on 19.5.2023 and it was held that when the matter was not listed for recording the statement under Section 313 of Cr.P.C. after putting notice of accusation, a right of cross-
examination cannot be denied. It was observed: -
"17. As noticed above, the accused had put in an appearance before the learned trial Court for the first time on 20.11.2017. He was put to notice under Section 251 Cr.P.C. on 5.12.2017. At that stage, learned trial Court had not shown strict compliance to the aforementioned direction and rather had not only fixed the case for recording of evidence of complainants but had recorded ::: Downloaded on - 19/06/2024 20:33:26 :::CIS 7 the statement of one of the complainant's witness on 4.6.2018.
18. Thus, in my considered view the impugned order .
cannot be sustained as it has divested the accused of his right to cross-examine the prosecution witness. The reason assigned for closing the right of cross- examination also cannot be countenanced for the reason that the accused had not been afforded reasonable opportunity to file the application under Section 145(2) of the Act."
14. In the present case also, a notice of accusation was put to the accused on 24.5.2019 and the matter was listed for recording the evidence and not for recording the statement of the accused under Section 313 Cr.P.C. The statement of the complainant was recorded on 25.11.2022 but no opportunity to cross-examine the complainant was given. It was laid down by this Court in Ashwani Kumar (supra) that the statement of a witness is incomplete without his cross-examination. It was observed;
13. In a criminal prosecution the accused has a right to cross-examine the prosecution witness unless such right is waived by him.... Section 138 of the Indian Evidence Act provides for the order of examination of a witness as under:
138. Order of examinations. -- Witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined.
The examination and cross-examination must relate to relevant facts, but the cross-examination ::: Downloaded on - 19/06/2024 20:33:26 :::CIS 8 need not be confined to the facts to which the witness testified on his examination-in-chief. Direction of re-examination. -The re-examination shall be directed to the explanation of matters .
referred to in cross-examination; and, if a new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine upon that matter.
Hence, the statement of a witness without affording a right to cross-examine and re-examine as per the above provision of law cannot be considered to be complete. The only requirement is that the party has to be afforded fair chance to cross-examine the witness. Once, the party fails to avail such a chance, he cannot subsequently challenge the statement made in the examination in chief."
15. Since, in the present case the directions in Indian Bank (supra) were not followed; hence no shelter can be taken behind them.
16. It was laid down by the Hon'ble Supreme Court in New India Assurance Co. Ltd. v. Nusli Neville Wadia, (2008) 3 SCC 279 that the cross-examination of a witness is a part of natural justice and has to be permitted even if not provided in the statute. It was observed:-
45. If some facts are to be proved by the landlord, indisputably the occupant should get an opportunity to cross-examine. The witness who intends to prove the said fact has the right to cross-examine the witness. This may not be provided by the statute, but it being a part of the principle of natural justice should be held to be an indefeasible right. (See K.L. Tripathi v. SBI [(1984) 1 SCC ::: Downloaded on - 19/06/2024 20:33:26 :::CIS 9 43:1984 SCC (L&S) 62] and Lakshman Exports Ltd. v. CCE [(2005) 10 SCC 634].
46. We may also take note of the fact that this Court .
in Bareilly Electricity Supply Co. Ltd. v. Workmen [(1971) 2 SCC 617: (1972) 1 SCR 241] this Court held as under: (SCC p. 629, para 14) "14. ... the application of the principle of natural justice does not imply that what is not evidence can be acted upon. On the other hand, what it means is that no materials can be relied upon to establish a contested fact which are not spoken to by persons who are competent to speak about them and are subjected to cross-examination by the party against whom they are sought to be used."
17. This position was reiterated in Ayaaubkhan Noorkhan Pathan v. State of Maharashtra, (2013) 4 SCC 465: (2013) 2 SCC (Civ) 658 : (2013) 2 SCC (L&S) 296: 2012 SCC OnLine SC 926 wherein it was observed:
Cross-examination is one part of the principles of natural justice
24. A Constitution Bench of this Court in State of M.P. v. Chintaman Sadashiva Waishampayan [AIR 1961 SC 1623] held that the rules of natural justice require that a party must be given the opportunity to adduce all relevant evidence upon which he relies, and further that, the evidence of the opposite party should be taken in his presence, and that he should be given the opportunity of cross-examining the witnesses examined by that party.
Not providing the said opportunity to cross-examine witnesses, would violate the principles of natural justice. (See also Union of India v. T.R. Varma [AIR 1957 SC 882], Meenglas Tea Estate v. Workmen [AIR 1963 SC 1719], Kesoram Cotton Mills Ltd. v. Gangadhar [AIR 1964 SC 708], New India Assurance Co. Ltd. v. Nusli Neville ::: Downloaded on - 19/06/2024 20:33:26 :::CIS 10 Wadia [(2008) 3 SCC 279 : (2008) 1 SCC (Civ) 850: AIR 2008 SC 876], Rachpal Singh v. Gurmit Kaur [(2009) 15 SCC 88 :
(2009) 5 SCC (Civ) 549: AIR 2009 SC 2448], Biecco Lawrie .
Ltd. v. State of W.B. [(2009) 10 SCC 32 : (2009) 2 SCC (L&S) 729: AIR 2010 SC 142] and State of U.P. v. Saroj Kumar Sinha [(2010) 2 SCC 772 : (2010) 1 SCC (L&S) 675: AIR 2010 SC 3131] .)
25. In Lakshman Exports Ltd. v. CCE [(2005) 10 SCC 634], this Court, while dealing with a case under the Central Excise Act, 1944, considered a similar issue i.e. permission with respect to the cross-examination of a witness. In the said case, the assessee had specifically asked to be allowed to cross-examine the representatives of the firms concerned, to establish that the goods in question had been accounted for in their books of accounts and that excise duty had been paid. The Court held that such a request could not be turned down, as the denial of the right to cross-examine, would amount to a denial of the right to be heard i.e. audi alteram partem.
26. In New India Assurance Co. Ltd. v. Nusli Neville Wadia [(2008) 3 SCC 279: (2008) 1 SCC (Civ) 850: AIR 2008 SC 876], this Court considered a case under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 and held as follows: (SCC p. 295, para 45) "45. If some facts are to be proved by the landlord, indisputably the occupant should get an opportunity to cross-examine. The witness who intends to prove the said fact has the right to cross-examine the witness. This may not be provided by under the statute, but it being a part of the principles of natural justice should be held to be indefeasible right." (emphasis added) In view of the above, we are of the considered opinion that the right of cross-examination is an integral part of the principles of natural justice.
27. In K.L. Tripathi v. SBI [(1984) 1 SCC 43: 1984 SCC (L&S) 62: AIR 1984 SC 273], this Court held that, in order to sustain a complaint of the violation of the principles of ::: Downloaded on - 19/06/2024 20:33:26 :::CIS 11 natural justice on the ground of absence of opportunity of cross-examination, it must be established that some prejudice has been caused to the appellant by the .
procedure followed. A party, who does not want to controvert the veracity of the evidence on record, or of the testimony gathered behind his back, cannot expect to succeed in any subsequent grievance raised by him, stating that no opportunity of cross-examination was provided to him, especially when the same was not requested, and there was no dispute regarding the veracity of the statement. (See also Union of India v. P.K. Roy [AIR 1968 SC 850] and Channabasappa Basappa Happali v. State of Mysore [(1971) 1 SCC 1: AIR 1972 SC 32] .) In Transmission Corpn. of A.P. Ltd. v. Sri Rama Krishna Rice Mill [(2006) 3 SCC 74: 2006 SCC (L&S) 467: AIR 2006 SC 1445], this Court held: (SCC p. 80, para 9) "9. In order to establish that the cross-examination is necessary, the consumer has to make out a case for the same. Merely stating that the statement of an officer is being utilised for the purpose of adjudication would not be sufficient in all cases. If an application is made requesting for a grant of an opportunity to cross-examine any official, the same has to be considered by the adjudicating authority who shall have to either grant the request or pass a reasoned order if he chooses to reject the application. In that event an adjudication being concluded, it shall be certainly open to the consumer to establish before the appellate authority as to how he has been prejudiced by the refusal to grant an opportunity to cross- examine any official."
28. The meaning of providing a reasonable opportunity to show cause against an action proposed to be taken by the Government, is that the government servant is afforded a reasonable opportunity to defend himself against the charges, on the basis of which an inquiry is held. The government servant should be given an opportunity to deny his guilt and establish his innocence. He can do so ::: Downloaded on - 19/06/2024 20:33:26 :::CIS 12 only when he is told what the charges against him are. He can, therefore, do so by cross-examining the witnesses produced against him. The object of supplying statements .
is that the government servant will be able to refer to the previous statements of the witnesses proposed to be examined against him. Unless the said statements are provided to the government servant, he will not be able to conduct an effective and useful cross-examination.
29. In Rajiv Arora v. Union of India [(2008) 15 SCC 306:
(2009) 3 SCC (Cri) 977 : AIR 2009 SC 1100] this Court held :
(SCC p. 310, paras 13-14) "13. ... Effective cross-examination could have been done as regards the correctness or otherwise of the report, if the contents of them were proved. The principles analogous to the provisions of the Evidence Act as also the principles of natural justice demand that the maker of the report should be examined, save and except in cases where the facts are admitted or the witnesses are not available for cross-examination or similar situation. ...
14. The High Court in its impugned judgment proceeded to consider the issue on a technical plea, namely, no prejudice has been caused to the appellant by such non-examination. If the basic principles of law have not been complied with or there has been a gross violation of the principles of natural justice, the High Court should have exercised its jurisdiction of judicial review."
30. The aforesaid discussion makes it evident that not only should the opportunity of cross-examination be made available, but it should be one of effective cross- examination, so as to meet the requirement of the principles of natural justice. In the absence of such an opportunity, it cannot be held that the matter has been decided in accordance with the law, as cross-examination is an integral part and parcel of the principles of natural justice."
::: Downloaded on - 19/06/2024 20:33:26 :::CIS 1318. In the United States of America, the right of confrontation of a witness is part of the fundamental right .
guaranteed by the Sixth Amendment. This is in recognition of the principle of natural justice incorporating the right of cross-
examination given to a person. United States Supreme Court explained the origin and importance of the right of cross-
examination in Crawford v. Washington, 2004 SCC OnLine US SC 20: 541 US 36 (2004) as under:
"The Sixth Amendment's Confrontation Clause provides that, "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." We have held that this bedrock procedural guarantee applies to both federal and state prosecutions. Pointer v. Texas, 380 U. S. 400, 406 (1965). As noted above, Roberts says that an unavailable witness's out-of-court statement may be admitted so long as it has adequate indicia of reliability--i.e., falls within a "firmly rooted hearsay exception" or bears "particularized guarantees of trustworthiness." 448 U. S., at 66. Petitioner argues that this test strays from the original meaning of the Confrontation Clause and urges us to reconsider it. The right to confront one's accusers is a concept that dates back to Roman times. See Coy v. Iowa, 487 U. S. 1012, 1015 (1988); Herrmann & Speer, Facing the Accuser: Ancient and Medieval Precursors of the Confrontation Clause, 34 Va. J. Int'l L. 481 (1994). The founding generation's immediate source of the concept, however, was the common law. English common law has long differed from continental civil law in regard to the manner in which witnesses give testimony in criminal trials. The common-law tradition is one of live testimony in court subject to adversarial ::: Downloaded on - 19/06/2024 20:33:26 :::CIS 14 testing, while the civil law condones examination in private by judicial officers. See 3 W. Blackstone, Commentaries on the Laws of England 373-374 (1768).
.
Nonetheless, England at times adopted elements of the civil-law practice. Justices of the peace or other officials examined suspects and witnesses before trial. These examinations were sometimes read in court in lieu of live testimony, a practice that "occasioned frequent demands by the prisoner to have his 'accusers,' i.e. the witnesses against him, brought before him face to face." 1 J. Stephen, History of the Criminal Law of England 326 (1883). In some cases, these demands were refused. See 9 W. Holdsworth, History of English Law 216-217, 228 (3d ed. 1944); e.g., Raleigh's Case, 2 How. St. Tr. 1, 15-16, 24 (1603); Throckmorton's Case, 1 How. St. Tr. 869, 875-876 (1554); cf. Lilburn's Case, 3 How. St. Tr. 1315, 1318-1322, 1329 (Star Chamber 1637).
Pre-trial examinations became routine under two statutes passed during the reign of Queen Mary in the 16th century, 1 & 2 Phil. & M., c. 13 (1554), and 2 & 3 id., c. 10 (1555). These Marian bail and committal statutes required justices of the peace to examine suspects and witnesses in felony cases and to certify the results to the court. It is doubtful that the original purpose of the examinations was to produce evidence admissible at trial. See J. Langbein, Prosecuting Crime in the Renaissance 21-34 (1974). Whatever the original purpose, however, they came to be used as evidence in some cases, see 2 M. Hale, Pleas of the Crown 284 (1736), resulting in an adoption of continental procedure. See 4 Holdsworth, supra, at 528-
530. The most notorious instances of civil law examination occurred in the great political trials of the 16 th and 17th centuries. One such was the 1603 trial of Sir Walter Raleigh for treason. Lord Cobham, Raleigh's alleged accomplice, had implicated him in an examination before the Privy Council and a letter. At Raleigh's trial, these were read to the jury. Raleigh argued that Cobham had ::: Downloaded on - 19/06/2024 20:33:26 :::CIS 15 lied to save himself: "Cobham is absolutely in the King's mercy; to excuse me cannot avail him; by accusing me he may hope for a favour." 1 D. Jardine, Criminal Trials 435 .
(1832). Suspecting that Cobham would recant, Raleigh demanded that the judges call him to appear, arguing that "[t]he Proof of the Common Law is by witness and jury:
let Cobham be here, let him speak it. Call my accuser before my face ...." 2 How. St. Tr., at 15-16. The judges refused, id., at 24, and, despite Raleigh's protestations that he was being tried "by the Spanish Inquisition," id., at 15, the jury convicted, and Raleigh was sentenced to death.
One of Raleigh's trial judges later lamented that "'the justice of England has never been so degraded and injured as by the condemnation of Sir Walter Raleigh.'" 1 Jardine, supra, at 520. Through a series of statutory and judicial reforms, English law developed a right of confrontation that limited these abuses. For example, treason statutes required witnesses to confront the accused "face to face" at his arraignment. E.g., 13 Car. 2, c.
1, § 5 (1661); see 1 Hale, supra, at 306. Courts, meanwhile, developed relatively strict rules of unavailability, admitting examinations only if the witness was demonstrably unable to testify in person. See Lord Morley's Case, 6 How. St. Tr. 769, 770-771 (H. L. 1666); 2 Hale, supra, at 284; 1 Stephen, supra, at 358. Several authorities also stated that a suspect's confession could be admitted only against himself, and not against others he implicated. See 2 W. Hawkins, Pleas of the Crown, ch. 46, § 3, pp. 603-604 (T. Leach 6th ed. 1787); 1 Hale, supra, at 585, n. (k); 1 G. Gilbert, Evidence 216 (C. Lofft ed. 1791); cf. Tong's Case, Kel. J. 17, 18, 84 Eng. Rep. 1061, 1062 (1662) (treason). But see King v. Westbeer, 1 Leach 12, 168 Eng. Rep. 108, 109 (1739).
One recurring question was whether the admissibility of an unavailable witness's pre-trial examination depended on whether the defendant had an opportunity to cross- examine him. In 1696, the Court of King's Bench ::: Downloaded on - 19/06/2024 20:33:26 :::CIS 16 answered this question in the affirmative, in the widely reported misdemeanor libel case of King v. Paine, 5 Mod. 163, 87 Eng. Rep. 584. The court ruled that, even though a .
witness was dead, his examination was not admissible where "the defendant not being present when [it was] taken before the mayor ... had lost the benefit of a cross- examination." Id., at 165, 87 Eng. Rep., at 585. The question was also debated at length during the infamous proceedings against Sir John Fenwick on a bill of attainder. Fenwick's counsel objected to admitting the examination of a witness who had been spirited away, on the ground that Fenwick had had no opportunity to cross-examine. See Fenwick's Case, 13 How. St. Tr. 537, 591-592 (H.C. 1696) (Powys) ("[T]hat which they would offer is something that Mr Goodman hath sworn when he was examined ...; sir J.F. not being present or privy, and no opportunity given to cross-examine the person; and I conceive that cannot be offered as evidence..."); id., at 592 (Shower) ("[N]o deposition of a person can be read, though beyond sea, unless in cases where the party it is to be read against was privy to the examination, and might have cross-examined him.... [O]ur constitution is, that the person shall see his accuser"). The examination was nonetheless admitted on a closely divided vote after several of those present opined that the common-law rules of procedure did not apply to parliamentary attainder proceedings--one speaker even admitting that the evidence would normally be inadmissible. See id., at 603-604 (Williamson); id., at 604-605 (Chancellor of the Exchequer); id., at 607; 3 Wigmore § 1364, at 22-23, n. 54. Fenwick was condemned, but the proceedings "must have burned into the general consciousness the vital importance of the rule securing the right of cross- examination." Id., § 1364, at 22; cf. Carmell v. Texas, 529 U. S. 513, 526-530 (2000).
Similarly, in State v. Campbell, 30 S.C.L. 124 (App. L. 1844), South Carolina's highest law court excluded a deposition taken by a coroner in the absence of the accused. It held:::: Downloaded on - 19/06/2024 20:33:26 :::CIS 17
"[I]f we are to decide the question by the established rules of the common law, there could not be a dissenting voice. For, notwithstanding the death of the witness, and .
whatever the respectability of the court taking the depositions, the solemnity of the occasion and the weight of the testimony, such depositions are ex parte, and, therefore, utterly incompetent." Id., at 125. The court said that one of the "indispensable conditions" implicitly guaranteed by the State Constitution was that "prosecutions be carried on to the conviction of the accused, by witnesses confronted by him, and subjected to his personal examination." Ibid.
Many other decisions are to the same effect. Some early cases went so far as to hold that prior testimony was inadmissible in criminal cases even if the accused had a previous opportunity to cross-examine.
See Finn v. Commonwealth, 26 Va. 701, 708 (1827); State v. Atkins, 1 Tenn. 229 (Super. L. & Eq. 1807) (per curiam). Most courts rejected that view, but only after reaffirming that admissibility depended on a prior opportunity for cross-examination. See United States v. Macomb, 26 F. Cas. 1132, 1133 (No. 15,702) (CC Ill. 1851); State v. Houser, 26 Mo. 431, 435-436 (1858); Kendrick v. State, 29 Tenn. 479, 485-488 (1850); Bostick v. State, 22 Tenn. 344, 345-346 (1842); Commonwealth v. Richards, 35 Mass. 434, 437 (1837); State v. Hill, 20 S. C. L. 607, 608-610 (App.
1835); Johnston v. State, 10 Tenn. 58, 59 (Err. & App. 1821).
Nineteenth-century treatises confirm the rule. See 1 J. Bishop, Criminal Procedure § 1093, p. 689 (2d ed. 1872); T. Cooley, Constitutional Limitations *318. The historical record also supports a second proposition:
that the Framers would not have allowed the admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross- examination. The text of the Sixth Amendment does not suggest any open-ended exceptions from the ::: Downloaded on - 19/06/2024 20:33:26 :::CIS 18 confrontation requirement to be developed by the courts. Rather, the "right ... to be confronted with the witnesses against him," Amdt. 6, is most naturally read as a .
reference to the right of confrontation at common law, admitting only those exceptions established at the time of the founding. See Mattox v. United States, 156 U. S. 237, 243 (1895); cf. Houser, 26 Mo., at 433-435. As the English authorities above reveal, the common law in 1791 conditioned the admissibility of an absent witness's examination on unavailability and a prior opportunity to cross-examine. The Sixth Amendment therefore incorporates those limitations. The numerous early state decisions applying the same test confirm that these principles were received as part of the common law in this country....
We do not read the historical sources to say that a prior opportunity to cross-examine was merely a sufficient, rather than a necessary, condition for the admissibility of testimonial statements. They suggest that this requirement was dispositive, and not merely one of several ways to establish reliability. This is not to deny, as THE CHIEF JUSTICE notes, that "[t]here were always exceptions to the general rule of exclusion" of hearsay evidence. Post, at 73. Several had become well-established by 1791. See 3 Wigmore § 1397, at 101; Brief for the United States as Amicus Curiae 13, n. 5. But there is scant evidence that exceptions were invoked to admit testimonial statements against the accused in a criminal case. [The one deviation we have found involves dying declarations. The existence of that exception as a general rule of criminal hearsay law cannot be disputed. See, e.g., Mattox v. United States, 156 U. S. 237, 243-244 (1895); King v. Reason, 16 How. St. Tr. 1, 24-38 (K. B. 1722); 1 D. Jardine, Criminal Trials 435 (1832); Cooley, Constitutional Limitations, at *318; 1 G. Gilbert, Evidence 211 (C. Lofft ed. 1791); see also F. Heller, The Sixth Amendment 105 (1951) (asserting that this was the only recognized criminal hearsay exception at common law). Although ::: Downloaded on - 19/06/2024 20:33:26 :::CIS 19 many dying declarations may not be testimonial, there is authority for admitting even those that clearly are. See Woodcock, supra, at 501-504, 168 Eng. Rep., at 353- .
354; Reason, supra, at 24-38; Peake, supra, at 64;
cf. Radbourne, supra, at 460-462, 168 Eng. Rep., at 332-333. We need not decide in this case whether the Sixth Amendment incorporates an exception for testimonial dying declarations. If this exception must be accepted on historical grounds, it is sui generis.] Most of the hearsay exceptions covered statements that by their nature were not testimonials--for example, business records or statements in furtherance of a conspiracy. We do not infer from these that the Framers thought exceptions would apply even to prior testimony. Cf. Lilly v. Virginia, 527 U. S. 116, 134 (1999) (plurality opinion) ("[A]ccomplices confessions that inculpate a criminal defendant are not within a firmly rooted exception to the hearsay rule"). [ We cannot agree with THE CHIEF JUSTICE that the fact "[t]hat a statement might be testimonial does nothing to undermine the wisdom of one of these [hearsay] exceptions." Post, at 74. Involvement of government officers in the production of testimony with an eye toward trial presents unique potential for prosecutorial abuse--a fact borne out time and again throughout a history with which the Framers were keenly familiar. This consideration does not evaporate when testimony happens to fall within some broad, modern hearsay exception, even if that exception might be justifiable in other circumstances.] Our case law has been largely consistent with these two principles. Our leading early decision, for example, involved a deceased witness's prior trial testimony. Mattox v. United States, 156 U. S. 237 (1895). In allowing the statement to be admitted, we relied on the fact that the defendant had had, at the first trial, an adequate opportunity to confront the witness: "The substance of the constitutional protection is preserved to the prisoner in the advantage he has once had of seeing ::: Downloaded on - 19/06/2024 20:33:26 :::CIS 20 the witness face to face, and of subjecting him to the ordeal of a cross-examination. This, the law says, he shall under no circumstances be deprived of...." Id., at 244.
.
Our later cases conform to Mattox's holding that prior trial or preliminary hearing testimony is admissible only if the defendant had an adequate opportunity to cross- examine. See Mancusi v. Stubbs, 408 U. S. 204, 213-216 (1972); California v. Green, 399 U. S. 149, 165-168 (1970); Pointer v. Texas, 380 U. S., at 406-408; cf. Kirby v. United States, 174 U. S. 47, 55-61 (1899). Even where the defendant had such an opportunity, we excluded the testimony where the government had not established the unavailability of the witness. See Barber v. Page, 390 U. S. 719, 722-725 (1968); cf. Motes v. United States, 178 U. S. 458, 470-471 (1900). We similarly excluded accomplice confessions where the defendant had no opportunity to cross-examine. See Roberts v. Russell, 392 U. S. 293, 294-295 (1968)(per curiam); Bruton v. United States, 391 U. S. 123, 126-128 (1968); Douglas v. Alabama, 380 U. S. 415, 418-420 (1965).
In contrast, we considered reliability factors beyond the prior opportunity for cross-examination when the hearsay statement at issue was not testimonial.
See Dutton v. Evans, 400 U. S., at 87-89 (plurality opinion).
Even our recent cases, in their outcomes, hew closely to the traditional line. Ohio v. Roberts, 448 U. S., at 67-70, admitted testimony from a preliminary hearing at which the defendant had examined the witness. Lilly v. Virginia, supra, excluded testimonial statements that the defendant had had no opportunity to test by cross- examination. And Bourjaily v. United States, 483 U. S. 171, 181-184 (1987), admitted statements made unwittingly to a Federal Bureau of Investigation informant after applying a more general test that did not make prior cross-examination an indispensable requirement. [ One case arguably in tension with the rule requiring a prior opportunity for cross-examination when the proffered statement is testimonial is White v. Illinois, 502 U. S. 346 ::: Downloaded on - 19/06/2024 20:33:26 :::CIS 21 (1992), which involved, inter alia, statements of a child victim to an investigating police officer admitted as spontaneous declarations. Id., at 349-351. It is .
questionable whether testimonial statements would ever have been admissible on that ground in 1791; to the extent, the hearsay exception for spontaneous declarations existed at all, it required that the statements be made "immediat[ely] upon the hurt received, and before [the declarant] had time to devise or contrive anything for her advantage." Thompson v. Trevanion, Skin. 402, 90 Eng. Rep. 179 (K. B. 1693). In any case, the only question presented in White was whether the Confrontation Clause imposed an unavailability requirement on the types of hearsay at issue. See 502 U. S., at 348-349. The holding did not address the question whether certain of the statements, because they were testimonial, had to be excluded even if the witness was unavailable. We "[took] as a given ... that the testimony properly falls within the relevant hearsay exceptions." Id., at 351, n. 4.] Our cases have thus remained faithful to the Framers' understanding: Testimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine. [THE CHIEF JUSTICE complains that our prior decisions have "never drawn a distinction" like the one we now draw, citing in particular Mattox v. United States, 156 U. S. 237 (1895), Kirby v. United States, 174 U. S. 47 (1899), and United States v. Burr, 25 F. Cas. 187 (No. 14,694) (CC Va. 1807) (Marshall, C.J.). Post, at 71-72. But nothing in these cases contradicts our holding in any way. Mattox and Kirby allowed or excluded evidence depending on whether the defendant had an opportunity for cross-examination. Mattox, supra, at 242-244; Kirby, supra, at 55-61. That the two cases did not extrapolate a more general class of evidence to which that criterion applied does not prevent us from doing so now. As to Burr, ::: Downloaded on - 19/06/2024 20:33:26 :::CIS 22 we disagree with THE CHIEF JUSTICE's reading of the case. Although Chief Justice Marshall made one passing reference to the Confrontation Clause, the case was .
fundamentally about the hearsay rules governing statements in furtherance of a conspiracy. The "principle so truly important" on which "inroad[s]" had been introduced was the "rule of evidence which rejects mere hearsay testimony." See 25 F. Cas., at 193. Nothing in the opinion concedes exceptions to the Confrontation Clause's exclusion of testimonial statements as we use the term. THE CHIEF JUSTICE fails to identify a single case (aside from one minor, arguable exception, see supra, at 58, n. 8), where we have admitted testimonial statements based on indicia of reliability other than a prior opportunity for cross-examination. If nothing else, the test we announce is an empirically accurate explanation of the results our cases have reached. Finally, we reiterate that, when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements.
See California v. Green, 399 U. S. 149, 162 (1970). It is therefore irrelevant that the reliability of some out-of- court statements "'cannot be replicated, even if the declarant testifies to the same matters in court.'" Post, at 74 (quoting United States v. Inadi, 475 U. S. 387, 395 (1986)).
The Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it. (The Clause also does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted. See Tennessee v. Street, 471 U. S. 409, 414 (1985).)] In this case, the State admitted Sylvia's testimonial statement against the petitioner, despite the fact that he had no opportunity to cross-examine her. That alone is sufficient to make out a violation of the Sixth Amendment. Roberts notwithstanding, we decline to mine the record in search of indicia of reliability. Where testimonial statements are at issue, the only indicium of ::: Downloaded on - 19/06/2024 20:33:26 :::CIS 23 reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes:
confrontation.
.
Indeed, cross-examination is a tool used to flesh out the truth, not an empty procedure. See Kentucky v. Stincer, 482 U. S. 730, 737 (1987) ("The right to cross-examination, protected by the Confrontation Clause, thus is essentially a 'functional right designed to promote reliability in the truth-finding functions of a criminal trial"); see also Maryland v. Craig, 497 U. S. 836, 845 (1990) ("The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact"). "[I]n a given instance [cross-examination may] be superfluous; it may be sufficiently clear, in that instance, that the statement offered is free enough from the risk of inaccuracy and untrustworthiness so that the test of cross-examination would be a work of supererogation." 5 Wigmore § 1420, at 251. In such a case, as we noted over 100 years ago, "The law in its wisdom declares that the rights of the public shall not be wholly sacrificed in order that an incidental benefit may be preserved to the accused." Mattox, 156 U. S., at 243; see also Salinger v. United States, 272 U. S. 542, 548 (1926). By creating an immutable category of excluded evidence, the Court adds little to a trial's truth-finding function and ignores this longstanding guidance.
19. The Hon'ble Supreme Court also held in Noor Mohammed v. Khurram Pasha, (2022) 9 SCC 23 that the right of cross-examination cannot be denied because the accused had failed to deposit the interim compensation and if such a right is denied, it will constitute an inherent infirmity. It was observed:-::: Downloaded on - 19/06/2024 20:33:26 :::CIS 24
"17. The provision concerned nowhere contemplates that an accused who had failed to deposit interim compensation could be fastened with any other disability .
including denial of the right to cross-examine the witnesses examined on behalf of the complainant. Any such order foreclosing the right would not be within the powers conferred upon the court and would, as a matter of fact, go well beyond the permissible exercise of power.
18. Since the right to cross-examine the respondent was denied to the appellant, the decisions rendered by the courts below suffer from an inherent infirmity and illegality. Therefore, we have no hesitation in allowing this appeal and setting aside the decisions of all three courts with further direction that Complaint Case No. 244 of 2019 shall stand restored to the file of the trial court. The trial court is directed to permit the appellant to cross-examine the respondent and then take the proceedings to a logical conclusion. With these observations, the appeal is allowed." (Emphasis supplied)
20. Even this Court held in Ashwani Kumar Sharma Vs. M/s Himachal Fabrics, Cr.MMO No. 540 of 2018, decided on 19.5.2023 that the right of cross-examination cannot be denied because the accused failed to file an application under Section 145(2) of the Act. It was observed:-
"12. The above option was exercised by the complainants on 12.7.2018 for the first time. Indisputably, the accused did not get any opportunity to cross-examine the complainant Amit Gupta on the statement recorded as preliminary evidence. The right of the accused to cross- examine was closed on the ground that he had failed to file an application under Section 145 (2) of the Act. The closure of the right to cross-examine the witness had the ::: Downloaded on - 19/06/2024 20:33:26 :::CIS 25 effect of rendering the statement of the witness un- rebutted or in a sense admitted."
21. In the present case, the complainant relied upon an .
affidavit prepared by him out of the Court in the absence of the complainant. He tendered the affidavit without allowing the accused to cross-examine him. This amounted to the admission of the evidence recorded outside the Court not tested by the cross-examination reminding one of Sir Walter Raleigh's trial and the accusations at Star Chambers. The law has moved much ahead of those primitive times and such an approach can never be accepted by a civilized nation. Hence, the learned First Appellate Court had rightly held that the trial suffered from inherent infirmity and remanded the matter to the learned Trial Court to correct the infirmity. No fault can be found with the approach of the learned First Appellate Court.
22. No other point was urged.
23. Consequently, the present petition fails and the same is dismissed.
24. The observation made herein before shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case.
::: Downloaded on - 19/06/2024 20:33:26 :::CIS 2625. The parties through their respective counsel are directed to appear before the learned Trial Court on 11.7.2024.
.
(Rakesh Kainthla)
Judge
19th June, 2024
(Chander)
r to
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