Calling Upon Accused To Cross-Examine Witness Without Legal Assistance Vitiates Trial: Delhi High Court
The Delhi High Court has held that calling upon an accused to cross-examine a prosecution witness in the absence of legal assistance strikes at the very core of fair trial and vitiates the entire proceedings.
Justice Girish Kathpalia said that presence of legal assistance for the accused facing trial is the core element of fair trial.
“In the trial proceedings where the accused in the absence of defence counsel, is called upon to cross-examine a witness, it is not just the accused who suffers injustice. It is the entire trial which gets vitiated,” the Court said.
“Copy of this order be sent to all Principal District & Sessions Judges in Delhi with the request to circulate the same amongst all Courts dealing with criminal trials so that such situation does not arise again,” it ordered.
The judge allowed a plea filed by various accused persons challenging a trial court order rejecting their application for further cross-examination of a prosecution witness.
The Court said that “gross injustice” had been caused to the accused when the prosecution witness had appeared for the first time for his cross-examination and they were not accompanied with their counsel.
It added that even any proxy counsel was not accompanying them and they were called upon to cross-examine the witness.
The Court said that although the trial court was not convinced with the reasons advanced to explain failure of defence counsel to appear, but even after that, the it could have invoked the power on its own to ensure no injustice was caused.
“In a case where the trial court is convinced that the accused is somehow protracting the proceedings in order to frustrate the prosecution witnesses, the trial court instead of calling upon the accused in the absence of legal assistance to cross-examine the witness, should either appoint an amicus curiae or should direct the local legal services authority to send some legal aid counsel. The purpose is that the fairness and purity of trial must be kept,” the Court said.
It added that nothing prevents even the trial court to put any questions to the prosecution witness because purpose of such trial is to arrive at the truth. In the name of expeditious trial, fairness of the trial cannot be allowed to become a casualty, it said.
Justice Kathpalia set aside the impugned order and directed that another opportunity be given to the accused through their counsel to cross-examine the prosecution witness in question.
Counsel for Petitioners: Mr. Ajatshatru Singh Rawat and Ms. Naimishi Verma, Advocates
Counsel for Respondents: Mr. Sanjeev Sabharwal, APP for the State
Title: RAM SWAROOP GUPTA & ORS v. STATE NCT OF DELHI & ANR