Allahabad High Court: In an application filed under Section 482 of the Criminal Procedure Code, 1973 (‘CrPC') to set aside the impugned order passed by the Trial Court, wherein the Court had closed the opportunity of cross examination for the accused The Single Judge Bench of Rajesh Singh Chauhan, J. said that under Section 273 CrPC, all evidence taken should be taken in front of the accused or in the presence of his pleader, andthat the right of Statutory prescription under Section 273 CrPC should only be denied in exceptional cases where the order sheet reflects that the party is habitual in seeking adjournments for one reason or another. Since it was the first adjournment sought by the accused/applicant, the impugned order in the present case was not proper.
The accused prayed for setting aside of the Trial Court's order dated 17-11-2022 and Additional Sessions Judge order dated 25-11-2022, and to direct Court below to recall the witness and allow the accused to cross examine him in the interest of justice.
In the case at hand, the counsel was busy and could not be present at the hearing, and an adjournment was requested since he couldn't cross-examine the prosecution witness. The request for adjournment was denied by the Trial Court, stating that the counselhad not indicated where he was busy.
The accused contended that since no adjournment of any kind was sought earlier to cross-examine the prosecution witness, rather the chief-examination of the said witness was already recorded. Therefore, at least, one short time should be given to the counsel for the accused in terms of Section 273 CrPC.
The Court said that when the chief-examination of the prosecution witness has been recorded and on the same date, such opportunity has been closed without giving any short adjournment, therefore, the same may not be considered as a proper exercise being carried out by the Trial Court. The counsel might have been busy in another court at particular point of time and if such application was filed before the Court below, that application should have been considered properly in the light of statutory prescription of Section 273 CrPC. vis-a-vis in the light of the fact that the cross-examination of a witness is a right of the other side. Such right may be denied only in exceptional circumstances.
The High Court steered away from the Trial Court's reasoning and held that Statutory Prescription under Section 273 couldn't be avoided in the present case and set aside the impugned order.
The Court directed the Trial Court to provide one opportunity to the accused counsel to cross-examine the prosecution witness fixing a single date, may be a short date, and if on that date, said prosecution witness could not be examined for any lapse on the part of the accused, any appropriate orders may be passed indicating the reason.
[Brijesh Saurabh Mishra v. State of U.P 2023 SCC OnLine All 29 decided on 16-01-2023]
Advocates who appeared in this case:
For the Appellants: Advocate Manoj Kumar Misra
For the Respondents: Government Advocate