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2012 (7) TMI 1045 - SC - Indian LawsDenial of opportunity to cross-examine the witness - Held that - On a parity of reasoning and looking to the consequences of denial of opportunity to cross-examine the witnesses, we would prefer to err in favour of the appellant getting an opportunity rather than protecting the prosecution against a possible prejudice at his cost. Fairness of the trial is a virtue that is sacrosanct in our judicial system and no price is too heavy to protect that virtue. A possible prejudice to prosecution is not even a price, leave alone one that would justify denial of a fair opportunity to the accused to defend himself.
Issues Involved:
1. Recall of Prosecution Witnesses for Cross-Examination 2. Deferring Cross-Examination of Investigating Officer 3. Fair Trial and Opportunity to Defend Detailed Analysis: Recall of Prosecution Witnesses for Cross-Examination The appellant, prosecuted under the Prevention of Corruption Act, 1988, sought to recall prosecution witnesses (PWs) 1 and 2 for cross-examination. The Trial Court had dismissed this request, noting that the cross-examination of PWs 1 and 2 was recorded as "nil" and there was no indication that the appellant had reserved the right to cross-examine them later. The High Court upheld this decision, emphasizing that the witnesses had been examined years earlier and recalling them would prejudice the prosecution. The Supreme Court, however, found that the counsel for the appellant had a bona fide belief that cross-examination could occur after the Trap Laying Officer (PW 11) was examined. The Court cited the essential rule of justice that unchallenged evidence must be accepted and emphasized the importance of cross-examination in testing the credibility of witnesses. The Court decided that the appellant should be given the opportunity to cross-examine PWs 1 and 2 to avoid a miscarriage of justice. Deferring Cross-Examination of Investigating Officer The appellant also requested to defer the cross-examination of the Investigating Officer (PW 12) until after PWs 1 and 2 were cross-examined. The Trial Court dismissed this request, and the High Court affirmed the decision. The Supreme Court noted that no formal application or oral prayer was made to reserve the right to cross-examine PWs 1 and 2. Despite this procedural lapse, the Supreme Court found the counsel's affidavit credible, indicating a genuine intention to cross-examine the witnesses after the Trap Laying Officer's testimony. The Court highlighted the need to rectify any inadvertent errors to ensure a fair trial, as emphasized in previous judgments like Rajendra Prasad Vs. Narcotic Cell. Fair Trial and Opportunity to Defend The Supreme Court underscored the principle that a fair trial is paramount, and the accused must be given a reasonable opportunity to defend themselves. The Court referred to its previous rulings, which stressed the importance of discovering the truth and ensuring justice. It emphasized that the power to recall witnesses under Section 311 Cr.P.C. is broad and should be exercised judiciously to prevent any failure of justice. The Court acknowledged the potential prejudice to the prosecution due to the delay but prioritized the appellant's right to a fair trial. Consequently, the Court allowed the appeals, directing the Trial Court to recall PWs 1 and 2 for cross-examination, ensuring the process is conducted expeditiously. Conclusion The Supreme Court allowed the appellant's appeals, setting aside the orders of the Trial Court and the High Court. It directed that PWs 1 and 2 be recalled for cross-examination, emphasizing the need for a fair trial and the opportunity for the appellant to defend himself adequately. The parties were instructed to appear before the Trial Court on a specified date to facilitate the cross-examination without unnecessary delay.
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