Case Note & Summary
The applicants (accused) filed a criminal application challenging the trial court's order rejecting their application to issue summons to a prosecution witness, Eknath Kundlik Barad, who was examined as a 'panch' witness (P.W.5). The examination-in-chief of P.W.5 was recorded on 23/02/2004. On the same date, the accused sought permission to cross-examine the witness, and the case was adjourned. However, the witness did not remain present on subsequent dates despite repeated summons issued from time to time. The roznama annexed to the application indicated that various efforts were made by the accused to serve witness summons on this witness, yet the witness remained absent on several dates. The trial court rejected the application for issuing summons. The High Court, after hearing the counsel for the applicants and the APP for the State, observed that the right to cross-examine is a valuable right and cannot be denied merely because the witness is absent. The court set aside the impugned order and directed the trial court to issue fresh summons to the witness for cross-examination. The court also directed the trial court to expedite the trial and complete it within six months from the date of receipt of the order.
Headnote
A) Criminal Procedure - Right to Cross-Examine - Summons to Witness - Section 243, Code of Criminal Procedure, 1973 - The accused sought to cross-examine a panch witness (P.W.5) whose examination-in-chief was recorded on 23/02/2004. Despite repeated summons, the witness remained absent. The trial court rejected the application for re-issuance of summons. The High Court held that the right to cross-examine is a valuable right and cannot be denied merely because the witness is absent; the court must ensure the witness is produced for cross-examination. The impugned order was set aside and the trial court was directed to issue fresh summons to the witness. (Paras 1-4)
Issue of Consideration
Whether the trial court was justified in rejecting the application for issuing summons to a prosecution witness (panch) for cross-examination after the witness failed to appear despite repeated summons.
Final Decision
The High Court allowed the criminal application. The impugned order passed by the trial court was set aside. The trial court was directed to issue fresh summons to the witness Eknath Kundlik Barad for cross-examination. The trial court was also directed to expedite the trial and complete it within six months from the date of receipt of the order.
Law Points
- Right to cross-examine
- Witness summons
- Panch witness
- Criminal Procedure Code
- 1973
- Section 243
- Section 311
Case Details
2005 LawText (BOM) (04) 84
Criminal Application No.228 of 2005
Amit Shete holding for Amit B. Borkar for applicants, A.S. Shitole, APP for the State
Bhagoji Sakharam Kusale & Ors.
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Nature of Litigation
Criminal application challenging trial court's order rejecting summons for cross-examination of a prosecution witness.
Remedy Sought
The applicants (accused) sought issuance of summons to prosecution witness Eknath Kundlik Barad for cross-examination.
Filing Reason
The trial court rejected the application for issuing summons to the panch witness who had not appeared for cross-examination despite repeated summons.
Previous Decisions
The trial court rejected the application for issuing summons to the witness.
Issues
Whether the trial court was justified in rejecting the application for issuing summons to a prosecution witness for cross-examination when the witness failed to appear despite repeated summons.
Submissions/Arguments
The learned counsel for the applicants submitted that examination-in-chief of P.W.5 was recorded on 23/02/2004, and on the same date the accused sought permission to cross-examine, and the case was adjourned. Thereafter, the witness did not remain present despite summons issued from time to time. The roznama indicated various efforts by the accused to serve summons, yet the witness remained absent. The trial court rejected the application for issuing summons.
The learned APP stated that the applicants are challenging the order rejecting the application for issuing summons to the panch witness.
Ratio Decidendi
The right to cross-examine a prosecution witness is a valuable right of the accused and cannot be denied merely because the witness is absent. The court must ensure that the witness is produced for cross-examination, and if necessary, issue fresh summons.
Judgment Excerpts
The learned APP states that applicants are challenging the order passed by the trial court rejecting the application for issuing summons to prosecution witness Eknath Kundlik Barad who was examined as 'panch' by the prosecution.
It is submitted by the learned counsel appearing on behalf of the applicants that examination in chief of P.W.5 was recorded on 23/02/2004. On the same date the applicant was made by the accused seeking permission to cross examine P.W.5 and accordingly, the case was adjourned to the next date. Thereafter, this witness did not remain present though the witness summons was issued from time to time.
Procedural History
The trial court recorded examination-in-chief of P.W.5 on 23/02/2004. The accused sought permission to cross-examine, and the case was adjourned. Despite repeated summons, the witness remained absent. The trial court rejected the application for issuing summons. The accused filed Criminal Application No.228 of 2005 before the High Court challenging that order.
Acts & Sections
- Code of Criminal Procedure, 1973: 243, 311
