The present Petition has been filed by the Petitioner - Original Accused under Articles 14, 16, 21 and 226 of the Constitution of India and also under Section 482 of the Criminal Procedure Code for the prayer that the order below Exh.50 passed by the learned Additional Sessions Judge, Bhuj in Sessions Case No.11 of 2009 dated 31.5.2012 may be quashed and set aside on the grounds stated in the Petition referring to Section 327 of Cr.PC.
Heard learned Advocate Mr. Kirtidev Dave for the Petitioners. As narrated in this Petition, the factual matrix of the case is that the Respondent No.2, who is a witness, had given an application (Exh.50) that one Lalsingh who is the father of the Petitioner No.1 and husband of the Petitioner No.2 may not remain present when her evidence is recorded for the reasons mentioned in the Application (Exh.50). It is required to be mentioned that the Sessions Court had framed charge on 9.8.2011 for the alleged offences under Sections 498A, 306 and 114 of the Indian Penal Code and the witness were examined. The evidence of Respondent No.2 as prosecution witness was being recorded and at the time of recording of her evidence, an Application (Exh.50) has been given that at the time of recording of her evidence, said Lalsingh - father of Petitioner No.1 and husband of Petitioner No.2 may not be allowed to remain present in the court room. The said application was allowed by the learned Sessions Judge, Bhuj vide impugned order dated 31.05.2012 below application Exh.50, which is assailed in the present Petition on the grounds stated in this Petition.
Learned Advocate Mr. Dave submitted that it is not that there is a threat, but due to some relations, she is not in a position to depose, and therefore, the Court has permitted to record the evidence as prayed for by the witness, and Lalsing is not permitted to remain present. However, he has submitted that it would affect the case of the defence as he is a instructing Advocate, and if, he would not be allowed to remain present, it would not be possible for him to instruct the Advocate who is remaining present for the defence. He submitted that what answer would be given by the witness may not be possible and at any time some instructions may be required by the lawyer, and therefore, such an order could not have been passed. Learned Advocate Mr. Dave has referred to and relied upon the judgment of the Hon'ble Apex Court in case of Sakshi v. Union of India and Ors., (2004) 5 SCC 518 and submitted that as observed, some partition may be created instead of not allowing the said Lalsingh to remain present.
Though the submissions have been made, one fails to understand what right a third party can have in course of trial or proceedings. Infact Section 327 clearly provide about the manner in which the Presiding Officer can conduct. It is specifically provided that;
"The Magistrate may, if thinks fit, order at any stage of any inquiry into, or trial of, any particular case, that the public generally, or any particular person, shall not have access to, or be or remain in, the room building used by the Court."
Therefore, conscious of the social atmosphere and the surroundings in our Courts, the legislature has specifically made this provision to make the witness comfortable for the purpose of free and fair trial would include that the witness must be made comfortable so that he can depose before the Court without any fear or any kind of uncomfortableness. Infact the Courts have made it clear that the witnesses should be made comfortable so that they can depose before the Court in the interest of justice and to assist the Court.
The reliance placed by learned Advocate Mr. Dave in case of Sakshi v. Union of India (supra) on the contrary supports the order passed by the learned Magistrate that it is in consonance with the legislative intention and the underlying policy of the free and fair trial. The Court had made the observation with regard to the accused that even though the evidence is required to be recorded in presence of the accused where he had allowed to remain present, still in some cases, like for the offence under Section 376, it has been made clear that if necessary partition may be created, the witness is comfortable at the time of her deposition. In this judgment, there is also a reference to the other discussion including the judgment of the Foreign Courts and the law Commission that the rules of evidence have not been constitutionalised into unaltered principles of fundamental justice. Neither should they be interpreted in a restrictive manner which may essentially defeat their purpose of seeking truth and justice.
Therefore, considering the ultimate object as stated above concept of fair trial, the present Petition cannot be entertained and it does not call for exercise of either inherent jurisdiction or any extra ordinary jurisdiction under Article 226.
The present Petition therefore deserves to be dismissed and accordingly stands dismissed in limine.
(Rajesh H.
Shukla,J) Jayanti* Top