Fair Trial Constitutional Goal; Must Let Accused Defend Himself: Delhi HC

Fair trial is a constitutional goal and a basic fundamental right of every individual and it demands giving an opportunity to an accused to defend himself, the Delhi High Court has said. The high court also said there is a constitutional duty in every court to determine the truth and reach a correct and just decision to prevent miscarriage of justice on account of absence of fair opportunity to a party.

The court’s observations came on a petition by an accused in a sexual offence matter, challenging a trial court order which dismissed his plea to re-examine two witnesses, including the victim.

The petitioner, who was facing trial for the alleged offences under Sections 376 (rape)/506 (punishment for criminal intimidation) of IPC and Section 6 (Punishment for aggravated penetrative sexual assault) of Prevention of Children from Sexual Offences Act (POCSO), contended that his lawyer was not able to cross-examine the two witnesses and same was causing prejudice to him as it would affect the future outcome of the case.

He said there was a dispute about the age of the victim and the case not being covered under the POCSO Act and trial court order, therefore, should be set aside.

Allowing the petitioner to undertake the cross-examination of the witnesses subject to a deposit of Rs 5,000 as costs with the Delhi High Court Advocates’ Welfare Fund, Justice Swarana Kanta Sharma said the court has widest discretionary powers to summon, examine or recall and re-examine any person to find out the truth and arrive at a just and correct decision but the same has to be exercised judiciously and not arbitrarily.

A constitutional duty has been cast on every Court to determine the truth and reach a correct and just decision so that miscarriage of justice does not take place by failure of affording an opportunity in a fair manner to the concerned party. In case the evidence sought to be brought on record is essential to the issue involved, the powers under Section 311 Cr.P.C. must be invoked. A fair trial is a constitutional goal and basic fundamental right of every individual, said the court in a recent order.

The court observed that in the present case, the issue concerning the age of the victim was essential to unfold the truth and the bar under POCSO to repeatedly ask the victim to testify has to be balanced with the right to fair trial.

Fair trial demands that the opportunity to defend the accused be afforded. In case, the cross-examination would have been conducted extensively, it would have been against mandate of law to re-summon the witness especially in a case of sexual offence.

However, in the present case, only questions regarding the family members, etc. of the victim were asked in the cross-examination and no question was put regarding the allegation levelled against the accused, the court said.

The court directed that the cross examination of the witnesses shall take place in one single opportunity and on the same day preferably and no adjournment shall be sought by the petitioner’s lawyer.

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