Allowed

Nimish Sunil Agarwal v. State of Chhattisgarh

Chhattisgarh HC5 Sept 2023CRMP/1013/2023

Case brief

AI extract

What is this about?

The High Court allowed a writ petition challenging the closure of the petitioner's right to cross-examine the victim. The court held the trial court erred in curtailing rights without more than sufficient time. The High Court granted one hour for cross-examination on a future date, imposed a cost of Rs. 10,000 on the petitioner payable to the victim, and warned against irrelevant questions.

What did the court decide?

Granted one hour time for cross-examination on 07.09.2023, payable cost of Rs. 10,000 to victim, prohibited unnecessary questions on character per Sections 146 EA and 162 Cr.P.C.

Nimish Sunil Agarwal Vs State of Chhattisgarh — Criminal Trial and Appeal | Chhattisgarh HC (2023)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Cr.M.P. No. 1013 of 2023

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Nimish Sunil Agarwal, S/o. Shri Sunil Agarwal, aged about 43 years, R/o. 1/45, Motilal Nehru Nagar (East), Bhilai, Police Station Supela, District Durg, Chhattisgarh

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---- Petitioner/Accused

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Versus

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1. State of Chhattisgarh through Police Station Supela, District Durg, Chhattisgarh

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1. ABC

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---- Respondents

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For Petitioner	:	Mr. Manoj Paranjpe, Advocate
For Respondent No. 1/State	:	Mrs. Hamida Siddiqui, Deputy Advocate General
For Respondent No. 2	:	Mr. Abhishek Sinha, Senior Advocate with Mr. Jaydeep Singh Yadav, Advocate

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Hon’ble Shri Justice Rakesh Mohan Pandey Order on Board

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05.09.2023

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The petitioner has challenged the order dated 18.04.2023 whereby time limit was fixed by the learned trial Court to cross-examine the victim, whereas vide order dated 29.04.2023 his right to cross-examine the victim has been closed. Learned counsel for the petitioner would confine this petition against the order dated 29.04.2023 whereby the right of the petitioner to crossexamine the victim has been closed.

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The facts of the present case, are that, on a complaint of the victim dated 07.05.2016, the F.I.R. was registered on 07.05.2016 against the petitioner and his relatives for the commission of offences punishable under Sections 498-A, 377, 323 read with Section 34 of IPC and Sections 3 & 4 of the Dowry Prohibition Act. The matter was investigated by the police and the charge sheet was filed wherein one more Section i.e. 376 of IPC was added against the petitioner. The Sessions Trial No. 108/2017 is pending before the Additional Sessions Judge (FTC), Durg, District Durg (C.G.) wherein the learned Trial Court has framed charges against the accused. In the sessions trial, two witnesses were examined whereas the examination and cross-

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examination of the victim (PW-1) was continued and during her crossexamination, the learned trial Court vide order dated 29.04.2023 closed the right of the petitioner to further cross-examine the victim on the ground that sufficient time has been afforded to the petitioner to cross-examine the victim. It is observed by the learned trial Court that a total of 12 hours and 57 minutes have been granted to the accused to cross-examine the victim and again on 29.04.2023, 01 hour and 10 minutes were given and the crossexamination cannot be permitted to continue for an indefinite period.

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Learned counsel for the petitioner would submit that vide order dated 31.03.2023 two days were granted to the petitioner for cross-examination of the victim i.e. on 17th-18th April, 2023. He would further submit that on 17.04.2023 the petitioner cross-examined the victim and thereafter on 18.04.2023 again the victim was cross-examined by the petitioner for 50 minutes from 11:10 AM to 12:00 PM. Thereafter on account of the demise of an advocate, the court proceedings did not continue post-lunch. He would next contend that the learned trial Court granted two full days to crossexamine the witness vide order dated 31.03.2023 whereas on 29.04.2023 only 01 hour and 10 minutes were granted to cross-examine the victim and thereafter the learned trial Court closed the right of the petitioner to crossexamine the victim observing that sufficient time has already been afforded to the petitioner to cross-examine the victim. He would also submit that the petitioner may be granted 01 hour more time to cross-examine the victim and in that period, the petitioner will conclude the cross-examination. He has placed reliance on the judgment of the Bombay High Court rendered in the matter of Baburao Patel v. Bal Thackeray and Another , reported in 1979 Mh.L.J. 11 and would submit that the court cannot restrict an accused imposing a time limit for cross-examination of a witness.

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On the other hand, learned Senior Counsel appearing for respondent No.2 would oppose the submissions put forth by Mr. Paranjpe and submit that the

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victim was extensively cross-examined by the petitioner for 17 hours on as many as 09 occasions where the petitioner put 173 questions. Learned Senior Counsel would further submit that in para-18 of the petition, the petitioner has specifically stated that the petitioner wanted to ask questions pertaining to Sections 377, 376 and 323 of IPC, whereas such permission cannot be granted according to the provisions of Section 146 of the Evidence Act and the questions in this regard have already been asked to the victim and there is no need to grant further time to put similar questions as there are some limitations provided under Section 146 of Evidence Act and Section 162 of Cr.P.C. He would further submit that the petitioner has adopted this tactic just to harass the victim. He has placed reliance on the judgment passed by the Hon'ble Supreme Court in the matter XYZ v. State of Madhya Pradesh and Ors. reported in AIR 2022 SC 3957 wherein the Hon'ble Supreme Court has held that in a matter of sexual offence as far as possible the cross-examination should be completed on the same date or by the next date. He would submit that the learned trial Court has rightly closed the right of the petitioner.

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I have heard learned counsel for the parties and perused the documents.

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In Ayaaubkhan Noorkhan Pathan v. State of Maharashtra and Others,

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(2013) 4 SCC 465 , the Hon'ble Supreme Court has held in paras- 24 to 30 as under:-

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“ Cross-examination is one part of the principles of natural justice

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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 Wadia, (2008) 3

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SCC 279, Rachpal Singh v. Gurmit Kaur, (2009) 15 SCC 88, Biecco Lawrie Ltd. v. State of W.B., (2009) 10 SCC 32 and State of U.P. v. Saroj Kumar Sinha, (2010) 2 SCC 772.)

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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.

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26. In New India Assurance Co. Ltd. v. Nusli Neville Wadia, (2008) 3 SCC 279, this Court considered a case under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 and held as follows: (SCC p. 295, para 45)

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“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.”

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(emphasis added)

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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.

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27. In K.L. Tripathi v. SBI, (1984) 1 SCC 43, this Court held that, in order to sustain a complaint of the violation of the principles of 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, specially 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.) In Transmission Corpn. of A.P. Ltd. v. Sri Rama Krishna Rice Mill, (2006) 3 SCC 74, this Court held: (SCC p. 80, para 9)

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“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 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

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before the appellate authority as to how he has been prejudiced by the refusal to grant an opportunity to crossexamine any official.”

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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 only when he is told what the charges against him are. He can, therefore, do so by crossexamining 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.

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29. In Rajiv Arora v. Union of India, (2008) 15 SCC 306 this Court held: (SCC p. 310, paras 13-14)

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“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. …

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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.”

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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 law, as crossexamination is an integral part and parcel of the principles of natural justice.”

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It appears that it is a matrimonial dispute between the parties. The F.I.R. was registered against the petitioner and his relatives for various offences including Sections 376 and 377 of IPC. The petitioner and his relatives are facing trial before the learned Additional Session Judge (FTC), Durg. The victim was examined as PW-1 on 09.02.2021 and 29.11.2022, after completion of her examination-in-chief, counsel for the petitioner started

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cross-examination. On that date at 12:30 pm, her cross-examination was started and it continued till 02:00 pm. After the tea break, it started at 03:10 pm and continued till 04:00 pm. On 10.12.2022 cross-examination of the victim started at 12 pm and it continued till 01:05 pm and from 01:10 pm to 02:00 pm and post lunch from 02:45 pm to 04:45 pm. On 26.12.2022 crossexamination of the victim started at 11:25 am to 02:00 pm and thereafter from 03:20 pm to 03:45 pm. The petitioner was granted two days i.e. 17th18th April, 2023 to cross-examine the victim vide order dated 31.03.2023. On 17.04.2023, the petitioner cross-examined the victim. The victim was cross-examined at 02:45 PM on 17.04.2023. On 18.04.2023, in the first half the victim was cross-examined for 50 minutes and post lunch on account of condolence, the victim could not be cross-examined. On 29.04.2023, the learned trial Court again permitted the petitioner to cross-examine the victim and the petitioner cross-examined the victim for 01 hour and 10 minutes and thereafter it was observed that the petitioner cannot be permitted to crossexamine the witness for an indefinite period as sufficient time has been granted to the petitioner to cross-examine the victim and one hour time which was granted vide order dated 18.04.2023 has come to an end and thus the learned Trial Court closed the right of the petitioner to crossexamine the victim.

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Section 138 of the Evidence Act deals with examination of the witnesses. It categorizes the examination of a witness in three stages i.e. examination-inchief, cross-examination and re-examination. This section doesn’t prescribe any time limit for examination in chief or cross-examination of the witnesses. It is a well-settled principle of law that a witness cannot be harassed on the pretext of cross-examination. It is also true that no time limit can be fixed for the cross-examination of a witness, it depends upon the nature of the offence, the allegation made against the accused, the number of witnesses, the relevancy of the witness in the matter concerned and no straight jacket

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formula can be applied in this regard and the accused cannot be fastened with a time limit to cross-examine a particular witness. In the matter of sexual abuse or sexual assault, there should be some limit with regard to cross-examination of victims and the questions must be put keeping in mind the provisions of Section 146 of the Evidence Act and Section 162 of Cr.P.C.

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The judgment cited by Mr. Abhishek Sinha, learned Senior Counsel for respondent No.2 passed by the Hon'ble Supreme Court in the matter of XYZ (supra), has emphasised this practice and it is held that in the matter of sexual abuse, the cross-examination of the witness should be completed on the same date or by the next date. Whereas in the matter of Baburao Patel (supra) relied on by Mr Manoj Paranjpe, learned counsel for the petitioner, the High Court of Bombay held that the Court would not be justified in imposing a time limit for cross-examination of a witness. But if the Court in the course of a trial comes to the conclusion that the crossexamination is unnecessary or irrelevant or even rambling, in such a case the Court has the power to control the cross-examination of a witness by counsel for the opposite party and such power should be exercised reasonably.

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In the present case, the learned trial Court has closed the right of the petitioner to cross-examine the victim only on the ground that sufficient time has already been granted to the petitioner and an indefinite period cannot be granted to an accused to cross-examine the witness.

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Taking into consideration the observation made by the learned trial Court and the law laid down by the Hon’ble Supreme Court and the High Court of Bombay, in the opinion of this Court, the learned trial Court has committed an error of law in curtailing the right of the petitioner to cross-examine the witness. It is a right of an accused to cross-examine the witness. In the present case, sufficient opportunity and time have already been afforded to the petitioner to cross-examine the victim, therefore, at the request of

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learned counsel for the petitioner, one hour time is granted for crossexamination of the victim subject to payment of the cost of Rs.10,000/payable to the victim. It is also observed that no unnecessary questions assailing the character of the victim shall be asked particularly the questions which are restricted under Section 146 of the Evidence Act and Section 162 of Cr.P.C. in the course of cross-examination. The case is fixed before the learned trial Court on 07.09.2023, therefore, if the victim appears on that date she may be cross-examined by the petitioner for one hour only and thereafter, the Court may proceed with the case according to the previous directions issued in another case i.e. W.P.(227) No. 149/2020 dated 11.01.2021.

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With the aforesaid observation(s) and direction(s), this petition is disposed of.

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Sd/- (Rakesh Mohan Pandey) Judge

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vatti

Nimish Sunil Agarwal v. State of Chhattisgarh

Case brief

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Nimish Sunil Agarwal v. State of Chhattisgarh

Case brief

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