Accused Can't Be Denied Effective Cross-Examination Due To Counsel's Absence: Rajasthan High Court Permits Recall Of Eyewitness

The Rajasthan High Court has granted relief to a murder-accused who was unable to effectively cross-examine an eye-witness, owing to the absence of his counsel on the particular day, by accepting the recall application filed by the accused, which was initially rejected by the trial court. While terming the order of the trial court as “overly technical”, the bench of Justice Farjand Ali observed that even though the opportunity to cross examine the said witness was granted to the accused, it stood vitiated since the counsel was not present. The Court opined that a lay accused could not be expected to conduct the cross-examination with same skills as that of a trained legal practitioner. “The absence of counsel on the relevant date cannot be viewed in isolation or with pedantic rigidity, particularly when the consequence of such absence results in the deprivation of a meaningful defence. A lay accused cannot be expected to unravel inconsistencies, test veracity, or impeach the credibility of a crucial eyewitness with the same dexterity as a trained legal practitioner.”The petitioner was accused in a murder case. On the day when the cross-examination of the eye-witness was due to happen, the petitioner's counsel was not present. In that event, the petitioner himself confronted the witness. Considering that the cross-examination was perfunctory and ineffective, an application was filed to recall the witness which was rejected by the trial court. Hence, the petition was filed. After hearing the contentions, the Court underscored the significance of the right to an effective cross-examination, and held that such right was not a mere procedural ritual or an ornamental formality, but a solemn judicial inquiry where the liberty of an individual was at stake. It was held that to construe such a constrained exercise of this right, in the manner as in the present matter, was to elevate form over substance and to reduce the concept of fair trial to a hollow incantation. “…where the trial may culminate in the imposition of capital punishment, the Courts are enjoined to adopt a liberal and justice-oriented approach, ensuring that no prejudice, howsoever inadvertent, is caused to the accused.”The Court further stated that even though recalling a witness entailed certain inconvenience, the scales of justice had to favour a fair trial rather than preservation of procedural rigidity. It was held that the inconveniences to the witness could be suitably mitigated by awarding appropriate costs. While highlighting that the request for recall appeared to be bona fide and legitimate for ensuring effective defence, the Court allowed the petition, while setting aside the order of the trial court. Accordingly, the trial court was directed to secure the presence of the witness, while directing the petitioner to deposit Rs. 5000/- to be given to the concerned witness, to balance the equities and compensate for the inconvenience caused to the witness. Title: Bhupendra Singh v State of Rajasthan Citation: 2026 LiveLaw (Raj) 137Click Here To Read/Download Order

Accused Can't Be Denied Effective Cross-Examination Due To Counsel's Absence: Rajasthan High Court Permits Recall Of Eyewitness

Nupur Agrawal

Tags