Sachin Kumar v. State

2011 III AD (SC) 194 wherein the Supreme Court, highlighting that right of the accused to be defended by a counsel is a fundamental right enshrined in Article 21 of the Constitution, observed that the court should not decide a criminal case against the accused in absence of his counsel. Learned counsel has submitted that on the relevant day, counsel for the accused/petitioner was busy in some other court, as a result he could not appear before the trial court at the time of examination of PW-4. It is contended that absence of lawyer was unintentional and, for that the petitioner should not be penalised by preventing him from availing the right to cross examine the witness. Petitioner has also relied upon the judgment of this Court in Sanjeev Nanda Vs. State of NCT of Delhi, 2007 (3) JCC 2156 and urged that the impugned orders of learned Additional Sessions Judge be set aside and directions be issued for recalling of PW-4 for the purpose of cross-examination. Learned APP submits that though he is not opposing the petition but the fact remains that on 11'^'^ February, 2011, when witness Krishan Mohan was examined as PW4, he made it clear that he was under treatment for injury sustained in the incident and as such, it was not possible for him to come again and again from Bihar. Learned APP submits that perhaps this was the reason which prevailed upon the mind of learned Additional Sessions Judge while declining the application under Section 311 CrPC. I have considered the rival submissions and perused the record. The right of the accused to be defended by a counsel in a criminal trial is a fundamental right guaranteed to him under Article 21 of the Constitution. This is obvious from the observation of the Apex Court in the matter of Sukur AM (Md.) Vs. State of Assam (supra), which is reproduced thus: "Court should not decide a criminal case against the accused in the absence of counsel. If the counsel for the accused is absent, for whatever reason, the court instead of deciding the case at the back of the counsel should appoint an amicus curiae. The right of , the accused to be defended by a counsel is a fundamental right enshrined under Article 21 of the Constitution". Thus, taking into consideration the fact that PW4 Krishan Mohan is the star witness of the prosecution, I am of the view that interest of justice demands that the petitioner may be permitted recall of PW4 for the purpose of cross examination. The court, however, cannot ignore the fact that the witness, namely, Krishan Mohan PW-4 is a resident of Bihar and it would cause unnecessary inconvenience to him to come again to the court for cross-examination. Thus, the petition is allowed, subject to cost of ?5000/- to be paid by the petitioner to the witness for the inconvenience and harassment which would be caused to him for coming again from Bihar for his examination. It is clarified that cross examination of PW4 Krishan Mohan shall be recorded on a single date of hearing and the petitioner shall not seek adjournment on the relevant date. Petition stands disposed of. Copy of the order be sent to the concerned Trial Court for necessary information and compliance. (AJIT BHARIHOKE) JUDGE JULY 27, 2011