9911796707
TMI Blog2024 (6) TMI 1388X X X X Extracts X X X X X X X X Extracts X X X X ..... urram Pasha, [ 2022 (8) TMI 924 - SUPREME COURT ] that the right of cross-examination cannot be denied because the accused had failed to deposit the interim compensation and if such a right is denied, it will constitute an inherent infirmity. In the present case, the complainant relied upon an affidavit prepared by him out of the Court in the absence of the complainant. He tendered the affidavit without allowing the accused to cross-examine him. This amounted to the admission of the evidence recorded outside the Court not tested by the cross-examination reminding one of Sir Walter Raleigh's trial and the accusations at Star Chambers - the learned First Appellate Court had rightly held that the trial suffered from inherent infirmity and remanded the matter to the learned Trial Court to correct the infirmity. No fault can be found with the approach of the learned First Appellate Court. The present petition fails and the same is dismissed. - HON BLE MR JUSTICE RAKESH KAINTHLA, JUDGE For the Appellant : Rakesh Chauhan, Advocate For the Respondent : Sanket Sankhyan, Advocate and Ajeet Sharma, Deputy Advocate General JUDGMENT RAKESH KAINTHLA, J. 1. The present revision is directed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Court erred in setting aside the judgment and order passed by the learned Trial Court and remanding the matter to the learned Trial Court for enabling the accused to cross- examine the witnesses. The accused never applied under Section 145(2) of the NI Act for cross-examination of the witnesses and he had no right to cross-examine the complainant's witnesses without any such application. Therefore, it was prayed that the present revision be allowed and the judgment passed by the learned Appellate Court be set aside. 6. I have heard Mr. Rakesh Chauhan, learned counsel for the petitioner/complainant, Mr. Sanket Sankhyan, learned counsel for respondent No.1-accused and Mr. Ajeet Sharma, learned Deputy Advocate General for respondent No.2-State. 7. Mr. Rakesh Chauhan, learned counsel for the petitioner/complainant submitted that the learned Appellate Court erred in remanding the matter to the learned Trial Court. The accused never filed any application for seeking cross- examination of the witnesses and it was not permissible for the leaned Appellate Court to grant opportunity to him; therefore, he prayed that the present revision be allowed and the judgment passed by the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice under Section 251 Cr.P.C. on 5.12.2017. At that stage, learned trial Court had not shown strict compliance to the aforementioned direction and rather had not only fixed the case for recording of evidence of complainants but had recorded the statement of one of the complainant's witness on 4.6.2018. 18. Thus, in my considered view the impugned order cannot be sustained as it has divested the accused of his right to cross-examine the prosecution witness. The reason assigned for closing the right of cross- examination also cannot be countenanced for the reason that the accused had not been afforded reasonable opportunity to file the application under Section 145(2) of the Act. 14. In the present case also, a notice of accusation was put to the accused on 24.5.2019 and the matter was listed for recording the evidence and not for recording the statement of the accused under Section 313 Cr.P.C. The statement of the complainant was recorded on 25.11.2022 but no opportunity to cross-examine the complainant was given. It was laid down by this Court in Ashwani Kumar (supra) that the statement of a witness is incomplete without his cross-examination. It was observed; 13. In a crim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... principle of natural justice does not imply that what is not evidence can be acted upon. On the other hand, what it means is that no materials can be relied upon to establish a contested fact which are not spoken to by persons who are competent to speak about them and are subjected to cross-examination by the party against whom they are sought to be used. 17. This position was reiterated in Ayaaubkhan Noorkhan Pathan v. State of Maharashtra, 2012:INSC:512 : (2013) 4 SCC 465: (2013) 2 SCC (Civ) 658 : (2013) 2 SCC (L S) 296 wherein it was observed: Cross-examination is one part of the principles of natural justice 24. A Constitution Bench of this Court in State of M.P. v. Chintaman Sadashiva Waishampayan [AIR 1961 SC 1623] held that the rules of natural justice require that a party must be given the opportunity to adduce all relevant evidence upon which he relies, and further that, the evidence of the opposite party should be taken in his presence, and that he should be given the opportunity of cross-examining the witnesses examined by that party. Not providing the said opportunity to cross-examine witnesses, would violate the principles of natural justice. (See also Union of India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ablished that some prejudice has been caused to the appellant by the procedure followed. A party, who does not want to controvert the veracity of the evidence on record, or of the testimony gathered behind his back, cannot expect to succeed in any subsequent grievance raised by him, stating that no opportunity of cross-examination was provided to him, especially when the same was not requested, and there was no dispute regarding the veracity of the statement. (See also Union of India v. P.K. Roy [1967:INSC:256 : AIR 1968 SC 850] and Channabasappa Basappa Happali v. State of Mysore [1970:INSC:221 : (1971) 1 SCC 1 : AIR 1972 SC 32] .) In Transmission Corpn. of A.P. Ltd. v. Sri Rama Krishna Rice Mill [2006:INSC:95 : (2006) 3 SCC 74: 2006 SCC (L S) 467 : AIR 2006 SC 1445], this Court held: (SCC p. 80, para 9) 9. In order to establish that the cross-examination is necessary, the consumer has to make out a case for the same. Merely stating that the statement of an officer is being utilised for the purpose of adjudication would not be sufficient in all cases. If an application is made requesting for a grant of an opportunity to cross-examine any official, the same has to be considered by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the principles of natural justice. In the absence of such an opportunity, it cannot be held that the matter has been decided in accordance with the law, as cross-examination is an integral part and parcel of the principles of natural justice. 18. In the United States of America, the right of confrontation of a witness is part of the fundamental right guaranteed by the Sixth Amendment. This is in recognition of the principle of natural justice incorporating the right of cross- examination given to a person. United States Supreme Court explained the origin and importance of the right of cross- examination in Crawford v. Washington, 2004 SCC OnLine US SC 20: 541 US 36 (2004) as under: The Sixth Amendment's Confrontation Clause provides that, [i]n all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him. We have held that this bedrock procedural guarantee applies to both federal and state prosecutions. Pointer v. Texas, 380 U. S. 400, 406 (1965). As noted above, Roberts says that an unavailable witness's out-of-court statement may be admitted so long as it has adequate indicia of reliability-i.e., falls within a firmly rooted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... continental procedure. See 4 Holdsworth, supra, at 528- 530. The most notorious instances of civil law examination occurred in the great political trials of the 16th and 17th centuries. One such was the 1603 trial of Sir Walter Raleigh for treason. Lord Cobham, Raleigh's alleged accomplice, had implicated him in an examination before the Privy Council and a letter. At Raleigh's trial, these were read to the jury. Raleigh argued that Cobham had lied to save himself: Cobham is absolutely in the King's mercy; to excuse me cannot avail him; by accusing me he may hope for a favour. 1 D. Jardine, Criminal Trials 435 (1832). Suspecting that Cobham would recant, Raleigh demanded that the judges call him to appear, arguing that [t]he Proof of the Common Law is by witness and jury: let Cobham be here, let him speak it. Call my accuser before my face . 2 How. St. Tr., at 15-16. The judges refused, id., at 24, and, despite Raleigh's protestations that he was being tried by the Spanish Inquisition, id., at 15, the jury convicted, and Raleigh was sentenced to death. One of Raleigh's trial judges later lamented that 'the justice of England has never been so degraded and in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unless in cases where the party it is to be read against was privy to the examination, and might have cross-examined him. [O]ur constitution is, that the person shall see his accuser ). The examination was nonetheless admitted on a closely divided vote after several of those present opined that the common-law rules of procedure did not apply to parliamentary attainder proceedings-one speaker even admitting that the evidence would normally be inadmissible. See id., at 603-604 (Williamson); id., at 604-605 (Chancellor of the Exchequer); id., at 607; 3 Wigmore 1364, at 22-23, n. 54. Fenwick was condemned, but the proceedings must have burned into the general consciousness the vital importance of the rule securing the right of cross- examination. Id., 1364, at 22; cf. Carmell v. Texas, 529 U. S. 513, 526-530 (2000). Similarly, in State v. Campbell, 30 S.C.L. 124 (App. L. 1844), South Carolina's highest law court excluded a deposition taken by a coroner in the absence of the accused. It held: [I]f we are to decide the question by the established rules of the common law, there could not be a dissenting voice. For, notwithstanding the death of the witness, and whatever the respectabil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rates those limitations. The numerous early state decisions applying the same test confirm that these principles were received as part of the common law in this country. We do not read the historical sources to say that a prior opportunity to cross-examine was merely a sufficient, rather than a necessary, condition for the admissibility of testimonial statements. They suggest that this requirement was dispositive, and not merely one of several ways to establish reliability. This is not to deny, as THE CHIEF JUSTICE notes, that [t]here were always exceptions to the general rule of exclusion of hearsay evidence. Post, at 73. Several had become well-established by 1791. See 3 Wigmore 1397, at 101; Brief for the United States as Amicus Curiae 13, n. 5. But there is scant evidence that exceptions were invoked to admit testimonial statements against the accused in a criminal case. [The one deviation we have found involves dying declarations. The existence of that exception as a general rule of criminal hearsay law cannot be disputed. See, e.g., Mattox v. United States, 156 U. S. 237, 243-244 (1895); King v. Reason, 16 How. St. Tr. 1, 24-38 (K. B. 1722); 1 D. Jardine, Criminal Trials 435 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall under no circumstances be deprived of. Id., at 244. Our later cases conform to Mattox's holding that prior trial or preliminary hearing testimony is admissible only if the defendant had an adequate opportunity to cross- examine. See Mancusi v. Stubbs, 408 U. S. 204, 213-216 (1972); California v. Green, 399 U. S. 149, 165-168 (1970); Pointer v. Texas, 380 U. S., at 406-408; cf. Kirby v. United States, 174 U. S. 47, 55-61 (1899). Even where the defendant had such an opportunity, we excluded the testimony where the government had not established the unavailability of the witness. See Barber v. Page, 390 U. S. 719, 722-725 (1968); cf. Motes v. United States, 178 U. S. 458, 470-471 (1900). We similarly excluded accomplice confessions where the defendant had no opportunity to cross-examine. See Roberts v. Russell, 392 U. S. 293, 294-295 (1968)(per curiam); Bruton v. United States, 391 U. S. 123, 126-128 (1968); Douglas v. Alabama, 380 U. S. 415, 418-420 (1965). In contrast, we considered reliability factors beyond the prior opportunity for cross-examination when the hearsay statement at issue was not testimonial. See Dutton v. Evans, 400 U. S., at 87-89 (plurality opinion). Eve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nothing in these cases contradicts our holding in any way. Mattox and Kirby allowed or excluded evidence depending on whether the defendant had an opportunity for cross-examination. Mattox, supra, at 242-244; Kirby, supra, at 55-61. That the two cases did not extrapolate a more general class of evidence to which that criterion applied does not prevent us from doing so now. As to Burr, we disagree with THE CHIEF JUSTICE's reading of the case. Although Chief Justice Marshall made one passing reference to the Confrontation Clause, the case was fundamentally about the hearsay rules governing statements in furtherance of a conspiracy. The principle so truly important on which inroad[s] had been introduced was the rule of evidence which rejects mere hearsay testimony. See 25 F. Cas., at 193. Nothing in the opinion concedes exceptions to the Confrontation Clause's exclusion of testimonial statements as we use the term. THE CHIEF JUSTICE fails to identify a single case (aside from one minor, arguable exception, see supra, at 58, n. 8), where we have admitted testimonial statements based on indicia of reliability other than a prior opportunity for cross-examination. If nothing else, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m declares that the rights of the public shall not be wholly sacrificed in order that an incidental benefit may be preserved to the accused. Mattox, 156 U. S., at 243; see also Salinger v. United States, 272 U. S. 542, 548 (1926). By creating an immutable category of excluded evidence, the Court adds little to a trial's truth-finding function and ignores this longstanding guidance. 19. The Hon'ble Supreme Court also held in Noor Mohammed v. Khurram Pasha, 2022:INSC:779 : (2022) 9 SCC 23 that the right of cross-examination cannot be denied because the accused had failed to deposit the interim compensation and if such a right is denied, it will constitute an inherent infirmity. It was observed:- 17. The provision concerned nowhere contemplates that an accused who had failed to deposit interim compensation could be fastened with any other disability including denial of the right to cross-examine the witnesses examined on behalf of the complainant. Any such order foreclosing the right would not be within the powers conferred upon the court and would, as a matter of fact, go well beyond the permissible exercise of power. 18. Since the right to cross-examine the respondent was de ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
