Madhya Pradesh High Court
Vinod Raghuwanshi vs Ajay Arora on 27 January, 2023
Author: Dinesh Kumar Paliwal
Bench: Dinesh Kumar Paliwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT J A B A L P U R
BEFORE
HON'BLE SHRI JUSTICE DINESH KUMAR PALIWAL
MISC. CRIMINAL CASE No. 55857 of 2022
BETWEEN:-
VINOD RAGHUWANSHI, S/O SHRI GANGARAM
RAGHUWANSHI, AGED ABOUT 62 YEARS, OCCUPATION:
RETIRED GOVT. SERVANT, R/O: 93 PARAS MAJESTIC,
GULMOHAR BHOPAL (MADHYA PRADESH)
.....APPLICANT
(BY SHRI DEEPAK AWASTHI - ADVOCATE)
AND
1. AJAY ARORA, S/O SHRI M.L. ARORA, AGED ABOUT
62 YEARS, OCCUPATION: BUSINESSMAN, R/O: 23,
ZONE-II, M.P. NAGAR BHOPAL (MADHYA PRADESH)
2. O.P SHARMA, S/O SHRI SHARMA, AGED ABOUT 59
YEARS, OCCUPATION: GOVT. SERVICE, R/O H-36, E-8
GOVERNMENT COLONY KOTARA SULTANABAD
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI ANIL KHARE - SENIOR ADVOCATE WITH SHRI RAHUL DIWAKER -
ADVOCATE FOR THE RESPONDENT NO.1)
Reserved on : 17.01.2023
Pronounced on : 27.01.2023
This petition having been heard and reserved for orders, coming on for
pronouncement this day, the court passed the following:
ORDER
Learned senior counsel has filed objection as regards maintainability of the petition in respect of reliefs claimed.
2. Learned counsel for the parties are heard at length.
23. This petition under Section 482 of the Cr.P.C has been filed challenging the order dated 16.11.2022, passed in Criminal Revision No.511/2022, by 2nd ASJ, Bhopal, whereby the order dated 11.10.2022, passed in Regular Trial No.5542/2008 (Ajay Arora Vs. Vinod Raghuwanshi and Others) has been affirmed.
4. Learned counsel for the applicant has submitted that Regular Trial No.5542/2008 (Ajay Arora Vs. Vinod Raghuwanshi and Others) is a complaint case pending on the case file of Judicial Magistrate First Class, Bhopal. Complaint was filed long back on 10.04.2008 for commission of offence under Section 420 and 120-B of the IPC against the applicant and two others. It is submitted that on 14.11.2019 at the stage of evidence after framing of charge, the cross-examination of the complainant/respondent No.1 was initiated on behalf of accused O.P.Sharma and R.K. Goyal by Advocate Akhilesh Shrivastava and was concluded on 11.10.2022. No opportunity was granted to the applicant Vinod Raghuwanshi to cross-examine the witness Ajay Arora after framing of charge. It is submitted that Shri Amit Singh newly engaged counsel for the applicant Vinod Raghuwanshgi had appeared before the trial Court on 11.10.2022. He had filed his Vakalatnama and had requested for grant of permission to cross-examine the complainant No.1 who was present in the court room but instead of granting opportunity to cross- examine the applicant, learned trial Court passed the impugned order dated 11.10.2022 and denied applicant to grant permission to cross-examine complainant Ajay Arora.
5. Learned counsel for applicant has submitted that right to cross-examine the witnesses by the accused to test the veracity and correctness of his evidence is a fundamental right of fair trial enshrined under Article 21 of the Constitution of India. Such denial is a violation of fundamental right. He has drawn attention of 3 the Court towards various order sheets drawn by the trial Court demonstrating that at number of occasions, complainant Ajay Arora himself was not present in the Court for tendering his evidence. He has also referred the cross-examination of Ajay Arora showing that after framing of charge, Ajay Arora was cross-examined only for the accused O.P. Sharma and R.K.Goyal by Akhilesh Shrivastava -
Advocate. It is contended that Akhilesh Shrivastava Advocate had not cross- examined the witness Ajay Arora for applicant Vinod Raghuwanshi.
6. Therefore, it has been prayed that applicant Vinod be given only one chance to cross-examine complainant Ajay Arora. It is submitted that witness Ajay will be cross-examined by him within a period of 1-2 hours and applicant will not seek any further opportunity to cross-examine him. Hence, it is prayed that impugned order passed in criminal revision by the learned 2nd ASJ, Bhopal be set aside and applicant be permitted to cross-examine the witness Ajay Arora.
7. On the other hand, learned senior counsel appearing on behalf of respondent No.1 has raised preliminary objection contending that petition filed by the applicant is not maintainable as he has not challenged order dated 11.10.2022, passed by the learned JMFC, Bhopal, only revision order passed by 2nd ASJ, Bhopal has been challenged. In absence of any challenge to the original order passed by the learned JMFC, applicant cannot be permitted to cross-examine witness Ajay Arora. It is also the contention of learned counsel for respondent No.1 that earlier Akhilesh Shrivastava - Advocate was representing all the accused persons and he had cross-examined the witness at length. On the day of conclusion of the cross-examination of Ajay Arora by Akhilesh Shrivastava-
Advocate Vakalatnama of Amit Singh was filed and permission to cross-examine was sought. The aforesaid act on part of applicant Vinod Raghuwanshi was nothing but a delaying tactics to stall the progress of the case pending since 2008.
4Learned counsel referring para 10 of the revisional order passed by the learned 2nd ASJ, Bhopal has submitted that learned trial Court has rightly passed the impugned order of closing of the right to cross-examination of Vinod Raghuwanshi, as applicant Vinod Raghuwanshi had not taken any no objection certificate from his earlier counsel Shri Akhilesh Shrivastava - Advocate for engaging another counsel.
Therefore, learned Courts below have not committed any error in dismissing the application filed by the applicant. Hence, he has prayed for dismissal of the petition.
8. On a perusal of the order sheets drawn by the learned trial Court, impugned revisional order and the order dated 11.10.2022, passed by the Judicial Magistrate First Class and deposition sheet of the complainant witness Ajay Arora, it is apparent that after framing of charge Akhilesh Shrivastava Advocate had not cross-examined complainant witness Ajay Arora on behalf of applicant Vinod Raghuwanshi. He has cross-examined complainant Ajay Arora only for accused O.P. Sharma and R.K. Goyal. Thus, it is explicit that after framing of charge, complainant Ajay Arora has not been cross-examined on behalf of applicant Vinod Raghuwanshi. On a perusal of the order sheets drawn by the trial Court, it is apparent that at number of occassions complainant Ajay Arora himself had not turned up for tendering his evidence. In para 10 of the revision order, number of dates are shown on which case was fixed for cross-examination of witness Ajay Arora. But at the same time it cannot be overlooked that learned courts below have not taken into consideration the facts mentioned in the order sheets drawn by the trial Court demonstrating that on many occasions complainant Ajay Arora himself was not present for cross-examination. It is apparent that Akhilesh Shrivastava Advocate has cross-examined him only for accused O.P. Sharma and R.K.Goyal and not for applicant Vinod Raghuwanshi.
59. As far as the right of cross-examination of a witness is concerned, it is the most powerful and effective instrument in the hand of accused for bringing out and testing the truth of the evidence of witness. Ajay Arora is star witness as he is the complainant of the case. Mere on the ground that when Akhilesh Shrivastava Advocate concluded his cross-examination only then Amit Singh Advocate filed his Vakalatnama for applicant Vinod cannot be a ground to forfeit his right of cross-examination, as cross-examination is not a mere forum of procedure but is a matter of substance and accused has a right to put its version in the cross-
examination to assail the correctness of the statement of the witness as right to cross-examination is a valuable right. It cannot be denied to the litigants particularly accused of the case. It is apparent that in the case on hand only applicant cannot be held liable for the delay of trial as order sheets of the trial Court depicts a different story about the presence of the complainant himself on various dates fixed by the trial Court.
10. Having regard to the objection and scope of cross-examination, it is settled law that when allegations/accusations are made against any person facing trial, that party should have ample opportunity to cross-examine the person who had given the evidence against him. It is only after such an opportunity is given and the witness is cross-examined, the evidence becomes admissible. It is also apparent that applicant has sought only one and single opportunity to cross- examine the witness Ajay Arora. Having taken into consideration the impugned revisional order passed by the 2nd ASJ affirming the order dated 11.10.2022, passed by the JMFC and other material on record, I am of the view that learned Courts below were not justified in denying the opportunity of cross-examination to applicant Vinod Raghuwanshi, the important witness Ajay Arora after framing of charge.
611. Consequently, petition deserves to be allowed. Hence, same is allowed.
12. The impugned order passed in revision by the 2nd ASJ, Bhopal affirming the order dated 11.10.2022, passed by the JMFC in R.C.T.No.5442/2008 being not worth upholding is set aside. Applicant Vinod Raghuwanshi is granted one opportunity to cross-examine the witness Ajay Arora.
However, it is made clear that applicant Vinod Raghuwanshi shall conclude cross- examination of witness Ajay Arora within two hours of starting of the cross- examination. It is further made clear that learned trial Court shall grant only one opportunity and if same is not availed by the applicant, he shall not be entitled for any other opportunity to cross-examine the witness Ajay Arora.
(DINESH KUMAR PALIWAL) JUDGE Jasleen Digitally signed by JASLEEN SINGH SALUJA Date: 2023.01.27 17:48:22 +05'30'