Delhi High Court: In a petition filed under Articles 226/227 of the Constitution read with Section 528 of Bharatiya Nagarik Suraksha Sanhita, 2023 seeking to direct Trial Court to recall Head Constable ‘S’ for cross-examination in a case pending before Sessions Court, Anup Jairam Bhambhani, J., noted that the record showed that in the statement recorded by the Head Constable under Section 1611 the Criminal Procedure Code, 1973 (‘CrPC’), he had nowhere mentioned the petitioner (‘accused’), and yet during his examination-in-chief on 24-01-2025, i.e., almost 05 years later, the witness identified the accused in court.
The Court stated that speedy trial was in fact more in the interest of an accused who claimed innocence; but expedition in trial could not be at the cost of fairness of trial, since that would be against all canons of justice. Thus, the Court directed that the accused should have a limited and time-bound opportunity to cross-examine the Head Constable.
Background
It was submitted by the accused’s counsel that in relation to a rioting incident of 24-02-2020, Head Constable had not named or identified the present accused in his statement dated 01-06-2020 recorded under section 161 of CrPC. However, during his court deposition recorded on 24-01-2025, he had purported to identify the accused.
It was pointed-out that the incident for which the accused was being tried was related to alleged rioting by a mob on 24-02-2020; and it was important to cross-examine the Head Constable to elicit the fact that he could possibly not have suddenly identified the accused during his deposition on 24-01-2025 from an incident of 24-02-2020, when he had not even referred to him in the statement recorded under section 161 CrPC.
Whereas the respondents submitted that an adjournment could not have been granted by the Trial Court for cross-examination of the Head Constable since there was a very large number of prosecution witnesses before the Court and trial in the matter would get delayed. He further submitted that non-availability of a senior lawyer on behalf of an accused person was no ground for seeking an adjournment.
Analysis, Law, and Decision
The Court stated that though there was no gainsaying that unnecessary adjournments should never be granted, especially at the stage when witnesses were being deposed, one also could not lose sight of the fact that eventually the purpose of the exercise was to conduct a fair trial, and recording depositions expeditiously was intended to sub serve that purpose.
The Court stated that we must not delude ourselves into believing that the purpose of expeditious trial would be served by denying to an accused a fair and reasonable opportunity to cross-examine a prosecution witness on a critical issue. That was not to suggest that long and unnecessary adjournments should be granted for the asking, especially when a witness was under cross- examination. However, to roll-over a case for cross-examination by a day-or-two, when there was good reason for it, could not possibly be faulted.
The Court noted that the record showed that in the statement recorded by the Head Constable under section 161 of CrPC, he had nowhere mentioned the accused, and yet during his examination-in-chief on 24-01-2025, i.e., almost five years later, he identified the accused in court. There could hardly be any doubt that this would have come as a rude shock to the accused; and even if the senior lawyer representing the accused was present before the Trial Court on that day, he would have taken time to consult the accused so as to cross-examine the witness thoroughly, apart from confronting him with the statement recorded under section 161 of CrPC.
The Court stated that while this court did not fault the Trial Court for attempting to proceed with the trial expeditiously, but denying to the accused the right to cross-examine the Head Constable on an issue which was critical to the accused’s defence appeared to have been a disproportionate sense of expedition. Adjourning the matter to the next day or to any day soon, thereafter, would have been the balanced and appropriate course of action.
The Court stated that speedy trial was in fact more in the interest of an accused who claimed innocence; but expedition in trial could not be at the cost of fairness of trial, since that would be against all canons of justice. Thus, the Court set aside the order dated 24-01-2025 to the extent was it closed the opportunity of the accused to cross-examine the Head Constable and directed that the accused should have a limited and time-bound opportunity to cross-examine the Head Constable on such date and time as may be appointed by the Trial Court, at its earliest convenience.
The Court clarified that one and only one opportunity should be granted to the accused for cross-examining the Head Constable, without any further leeway being given to him in his behalf.
[Mohd. Danish v. State (NCT of Delhi) W.P. (CRL) 486 of 2025, decided on 13-02-2025]
Advocates who appeared in this case :
For the Petitioner: Bilal Anwar Khan, Varun Bhati and Anshu Kapoor, Advocates.
For the Respondents: Ashish Dutta, SPP with Mayank, Advocate; Inspector Gurmeet Singh.
Buy Constitution of India HERE
1. Corresponding Section 180 of Bharatiya Nagarik Suraksha Sanhita, 2023
