Crl.Petn./46/2024 of MOONSHINE NONGKHLAW Vs STATE OF MEGHALAYA on 6 August 2024

Serial No.01 Regular List

HIGH COURT OF MEGHALAYAAT SHILLONG

Crl.Petn. No. 46 of 2024

Date of Order: 06.08.2024

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Shri. Moonshine NongkhlawVs. State of Meghalaya.S/o A Kharbangar,Represented by the Public ProsecutorR/o Nonthymmai Kynrdem village/Special Public Prosecutor.Ri Bhoi district, Meghalaya.

….Petitioner.

….Respondent.

Coram:

Hon’ble Mr. Justice B. Bhattacharjee, Judge Appearance:

For the Petitioner/Appellant(s) : Mr. S. Deb, Adv.For the Respondent(s): Mr. K. Khan, AAG with Mr. S. Sengupta, Addl. Sr. GA. Mr. H. Abraham, GA.

ORAL:-

By this application, the petitioner has made a prayer for interferencewith the impugned order dated 09-07-2024 passed in Spl.(POCSO) Case No.7of 2021 by the Learned Special Judge (POCSO), Ri Bhoi District, Nongpoh.

Heard Mr. S. Deb, learned Counsel appearing for the petitioner andalso Mr. K. Khan, learned AAG assisted by Mr. S. Sengupta, learned Addl. Sr.GA appearing for the State-respondent.

The petitioner is facing trial in POCSO Case No. 7 of 2021 underSection 3(a)/4/17 of the POCSO Act. The case of the petitioner is that on 07-07-2024, two prosecution witnesses, namely, Diolot Shabong (PW 4) and Dr.T. Sutnga (PW 5) were present before the Trial Court for recording of theirevidences. The defence was represented by two Counsels, one being the localCounsel was present physically before the Court and the other leadingCounsel was present through video conference. It is contended that afterconclusion of the examination-in-chief of the said witnesses, the Counselrepresenting the petitioner through video conference desired to cross-examinethe said witnesses through video conference. However, the Trial Court didnot entertain cross-examination of the said witnesses through videoconference. The situation compelled the local Counsel who was physicallypresent before the Court for the petitioner to file two adjournmentapplications before the Trial Court. While the first adjournment applicationwas not accepted by the Court, the second adjournment application was takenon record but after some time was returned back to the Counsel withoutassigning any reason thereof. Thereafter, the petitioner had no knowledgeabout the passing of any order by the Trial Court. The petitioner came toknow about the existence of the order dated 09-07-2024 only on 15-07-2024,when he obtained a certified copy of the order. After receiving the order, thepetitioner, to his utter shock and surprise, noticed that the Trial Court hadrecorded in the said order that the defence Counsel declined to cross-examinethe witnesses present despite the opportunity provided to the Counsel and onthat basis the evidences of PW4 and PW5 were closed by recording that thedefence Counsel is declined to cross-examine.

The learned Counsel for the petitioner strenuously argued that nosubmission declining cross-examination of the witnesses present was made on behalf of the defence on that particular date and the Trial Court hasrecorded the said submission under misconception and closed the opportunityof cross-examination of the PW4 and PW5 by the petitioner. He submits thatright to cross-examination is a vital right available to the accused in acriminal Trial and such right shall not ordinarily be taken away from theaccused. He further submits that the PW 4 and the PW 5 are vital witnessesin the trial and denial of opportunity of cross-examination of the saidwitnesses would amount to taking away of the petitioner’s right of defence inthe trial. He submits that since the impugned order dated 09-07-2024 deprivethe petitioner of a fair chance of a cross-examination, the same cannot standin the eye of law and is liable to be set aside and quashed.

Conclusion

The learned AAG, on the other hand, submits that the contention raisedon behalf of the petitioner are totally unfounded. He submits that whatsubmission was advanced on behalf of the petitioner before the Trial Court onthat particular day is best known to the Trial Court and cannot be determinedin this present proceeding. He also submits that the adjournment applicationswhich the petitioner claimed to have filed before the Trial Court are notprovided with any petition number and in such a situation it cannot be saidthat the adjournment applications were filed before the Trial Court. However,the learned AAG fairly concedes that right to cross-examination is a vital partof a criminal trial and an accused should not ordinarily be deprived of theopportunity.

It is indeed difficult to determine as to what had taken place before theTrial Court on the day when PW4 and PW5 were present before it forrecording of their evidence. The materials enclosed in the petition before thisCourt are not sufficient to enable the Court to come to a definite finding withregard to the contention raised on behalf of the petitioner. However, considering the fact that this petition primarily concerns the right of thepetitioner with regard to cross-examination of prosecution witnesses in thetrial faced by him and denial of such opportunity will cause serious prejudiceto the defence of the petitioner, it is deemed appropriate to interfere with theimpugned order dated 09-07-2024 of the learned Trial Court.

Accordingly, the order dated 09-07-2024 is set aside and quashed. TheTrial Court is directed to recall the PW4 and the PW5 for cross-examinationby the petitioner. The Trial Court while doing so, shall fix a specific date forcross-examination of the PW 4 and the PW5 by giving prior intimation to thepetitioner. The petitioner shall also not take any adjournment on the dayfixed for cross-examination of the said witnesses.

of.

With the above direction, this Crl. Petn. No.46 of 2024 stand disposed Judge Meghalaya06.08.2024“Biswarup PS”