The right to cross-examine a witness is a right that may be denied only in exceptional circumstances or in situations where the order sheet reveals that the other side/party is habitually seeking adjournments for one reason or another. This was stated by the single judge bench of the Allahabad High Court, led by Justice Rajesh Singh Chauhan, on January 16. 

The High Court began by noting that, in light of the circumstances of the case and the mandate of Section 273 CrPC, this was not a case in which the present applicant had frequently requested adjournments; rather, it was the first application for adjournment submitted on November 17, 2022, after the chief-examination of PW-11 had been recorded.

The Court said that because the chance had been passed up on the same day without a brief adjournment, it could not be regarded as a proper exercise being conducted by the learned trial court.

" Learned counsel might have been busy in another court at particular point of time and if such application was filed before the learned court below, that application should have been considered properly in the light of statutory prescription of Section 273 Cr.P.C. 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 or in such circumstances where the order sheet reveals that the other side/ party is habitual in seeking adjournments for one reason or another," the Court added 

As a result, the Court instructed the trial court to give the current applicant and his attorney one chance to cross-examine PW-11 by setting a single date, possibly a short date, and if on that date, said prosecution witness could not be questioned due to any error on the part of the current applicant, any appropriate orders may be passed indicating the reason.

The bench made this ruling while overturning a trial court ruling that barred the applicant (an accused party in a Gangster Act case) from questioning a prosecution witness during cross-examination, despite the fact that the applicant had moved for an adjournment on the grounds that his attorney was preoccupied in another court.

The principal statement of PW-11 was recorded on behalf of the applicant/accused by the subordinate court pursuant to an order dated 17.11.2022. Now, as the applicant's attorney was preoccupied at that time in another court, a motion was made on his behalf to adjourn the matter because his attorney was unable to cross-examine PW-11. 

However, the applicant's attorney further argued that the trial court dismissed the aforementioned application because the attorney for the current applicant failed to disclose his conflict of interest with the court.

The applicant then submitted a recall application pursuant to Section 311 CrPC to cross-examine PW11. This request was denied on the grounds that MP/MLA cases should be resolved promptly in accordance with instructions issued by the High Court and that the matter was past the point at which an adjournment could be granted.

The applicant appealed both orders to the High Court, arguing that, in accordance with Section 273 Cr.P.C., which clearly stated that, unless otherwise expressly provided, all evidence taken in a court of law during a trial or other proceeding shall be taken in the presence of the accused or, in the absence of his personal attendance, in the presence of his pleader. 

Case title - Brijeash Saurabh Mishra @ Brijesh Mishra vs. State Of U.P. Thru. Prin. Secy. Home Lko. And Another
Citation: APPLICATION U/S 482 No. - 216 of 2023 (Lucknow Bench)