The learned counsel for the applicant is permitted to delete respondent no. 2 from the array of the parties.
Heard learned counsel for the applicant and the learned AGA for the State and perused the record.
With the consent of the learned counsel for the parties, the present petition is being disposed of finally at the stage of admission.
It appears that the applicant is facing trial under sections 498-A/304-B IPC and 3/4 of the Dowry Prohibition Act vide the Session Trial No. 116 of 2010 (State v Anwar alias Shintu & others) which is pending in the court of the learned Additional Sessions Judge, Court No 7, Fatehpur, and is in jail as he had no advocate to defend himself, therefore, the learned trial court appointed an Amicus Curiae for conducting the trial on his behalf, who made cross examination of P.W.-1, Smt Raeesa Khatoon.
The learned counsel for the applicant submitted that the Amicus Curiae has omitted to put certain relevant questions to P.W.-1, Smt. Raeesa Khatoon, therefore, the applicant is entitled to have a thorough cross examination of P.W.-1, Smt. Raeesa Khatoon by an experienced advocate. The applicant has accordingly engaged a private counsel to conduct the trial on his behalf but when he moved an application for recalling P.W.-1, Smt. Raeesa Khatoon, the learned trial court rejected the prayer on the ground that specific question to be asked to the aforesaid witness had not been disclosed. After rejection of the said application, a second application was moved on behalf of the applicant disclosing questions in regard to which further cross examination of P.W. -1, Smt. Raeesa Khatoon was necessary but the learned trial court rejected that application too on the ground that the aforesaid witness had already been thoroughly cross examined by the Amicus Curiae.
The questions to be put to P.W.-1, Smt. Raeesa Khatoon have been referred in the impugned order dated 21.12.2010. They seem to be very relevant and have material bearing on the merits of the case, therefore, the rejection of the application on the ground that P.W.-1, Smt. Raeesa Khan had already been cross examined at length without considering as to whether the proposed questions to be put to the witness had been put by the Amicus Curiae or not. A copy of the statement of the aforesaid witness is on record, a perusal whereof reveals that the said witness has not been properly cross examined by the Amicus Curiae. Only few questions having no material bearing, have been put to the witness.
It appears that the witness, P.W. -1, Smt Raeesa Khan could not be properly cross examined by the Amicus Curiae only on account of his inexperience in conducting trials, therefore, the advocate, who has been engaged by the applicant and is alleged to be an experienced advocate needs to be permitted to make further cross-examination of the aforesaid witness particularly in regard to the questions disclosed in the application moved on behalf of the applicant.
It is well settled that an accused, who is in jail in connection with a heinous crime, should be permitted to defend himself through an advocate of his choice so that prosecution witnesses may not only be properly cross examined on his behalf but also he may defend the charge in a proper manner, therefore, a heavy duty lies on the trial court to see as to whether the accused, who is in jail, is being represented by an experienced advocate for properly defending the charges and if it is not so, then, the accused should be provided an advocate of his choice, but in this case, the learned trial court proceeded to record the statement of P.W.-1, Smt. Raeesa Khan without doing so and even did not permit the advocate subsequently appointed by the applicant to make additional cross examination of the said witness, therefore, the impugned order has resulted in causing material prejudice to the rights of the accused to have a fair trial and also to defend the charges levelled against him.
For the reasons discussed above, the petition is allowed.
The order dated 21.12.2010 passed by the learned Additional Sessions Judge, Court No 7, Fatehpur is quashed. The learned Additional Sessions Judge is directed to recall P.W.-1, Smt. Raeesa Khan for further cross examination at the expenses of the applicant.
Order Date :- 29.3.2011 shailesh