Credibility of any witness can be established only after the said witness is put to cross-examination by the accused: Allahabad HC

The Allahabad high court ruled that the credibility of witnesses can be established only after the witness being subjected to cross-examination. The present application was filed by the accused before the Allahabad High Court under section 482 of CRPC praying to quash the orders passed by the trial court.

Brief facts:

In the present case, the petitioner was initially charged under section 120B read with Section 302 of Indian Penal code along with other accused. She was further charged under section 120 B read with section 307 of the Indian Penal code. The trial was duly commenced and the statements of witnesses were recorded. After the completion of the recording of evidence, an application was moved by the prosecution to alter the charges against the accused Rekha and 2 other persons under section 147,148, 149, 302, 307 and 120B of Indian Penal Code. The said application was ordered by the trial court on 18.11.2019. On 19.11.2019, the prosecution filed an application stating that the witnesses are present before the said court and is ready for cross-examination. However, the trial court did not pass any order with respect to the same. Hence the learned advocate appearing on behalf of the accused Rekha filed an application before the trial court seeking an opportunity to cross-examine the witnesses with respect to the newly leveled charges against them. Further on 20.11.2019 the accused also moved an application to re- cross-examination afresh. The trial court categorically dismissed both the application stating that there would not be any adverse effect on the accused even if the trial proceeded without giving an opportunity to cross-examine the witnesses. Following the above order, the petitioner/accused has filed an application under 482 of Cr.P.C. before the Allahabad High Court seeking to quash the orders passed by the trial court.

The counsel for the applicant contended that the trial court erred in dismissing the application of the accused to cross-examine the witnesses in violation of principles of natural justice. Further also contended that the trial court has committed an error appears in the face of law by disregarding the provisions of section 216 and section 217 of Cr.P.C that provide the accused an opportunity to defend him after the alteration of charges. The learned counsel for the respondent also did not dispute the fact that the charges against the accused were altered and must be given an opportunity to cross-examine the witness against the newly framed charges.

Key features:

1. The Allahabad HC ruled that in view of the amended charges, the prosecution has to recall the witnesses to examine them so that the accused could defend her from the newly leveled charges against her thereby no prejudice caused to the accused.

2. The court observed that Section 216 and Section 217 of Cr.P.C are mandatory clauses as they not only serve the purpose of natural justice but affords an opportunity to the accused to defend her by examining the witnesses.

3. The court remarked that the credibility of a witness can be ascertained only when the witness is put to cross-examination and denying cross-examination of the witness by the accused persons vitiates the trial.

4. The court also ruled that providing the Right to be heard to the accused to defend him against the charges leveled against him is one of the facets of natural justice.

The court while allowing the application for the aforesaid reasons directed the trial court to call the prosecution on day to day basis thereby providing the accused to cross-examine the witnesses. The court further directed that the prosecution witnesses are required to be present in the court as and when required and the accused persons are not allowed to take unnecessary adjournments if the witness is present in the court.  The court also directed the trial court to provide the accused the right to be heard and not to conduct the trial in a haste manner without considering the mandatory provisions of law

Edited by J. Madonna Jephi

Approved & Published – Sakshi Raje

Reference:

1. APPLICATION No. – 43580 of 2019, APPLICATION No. – 43493 of 2019, The Allahabad High Court, order dated 04/02/2020.

2. Credibility Of Witness Can Be Established Only After Cross-Examination By The Accused: Allahabad HC, https://www.livelaw.in/news-updates/credibility-of-witness-can-be-established-only-after-cross-examination-by-the-accused-allahabad-hc-read-judgment-152518 (last visited on 10th February,2020)

Lavanya Narayanan
I am Lavanya Narayanan, pursuing a master's in international law. With three years into the profession, I am currently reviving my long-forgotten passion for writing. As and when I find a time I watch debates and interviews on the current affairs of our nation. My areas of interest are criminal law, women and child rights especially toddlers. I love listening to puranic stories. I believe accepting things you don’t know as you don’t know leads you to the path of growth. Happy reading!