# Santosh Sharma v. State of U.P. & Anr

- **Citation:** (2015) 2 ILRA 541
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-04-28
- **Case number:** Application U/S 482 No. 11323 of 2015
- **Bench:** Manoj Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/santosh-sharma-v-state-of-u-p-anr-43159
- **Pages:** 3

## Headnote

Cr.P.C. Section 482-Right of an accusedcross
-examination
the
prosecution
witness-when statement recorded-due to
strike of advocates-cross examination not
done-rejection
the
prayer
of
crossexamination on ground that-if allowed
would
encourage
to
strike-held-illegalvaluable rights of an accused can not be
forfeited-evidence
can
be
disclosed-if
accused refuse to accept service of amicus
curiae-not otherwise-order quashed.
Held: Para-8
In the instant case, admittedly, on the date
when those prosecution witnesses were
examined, the lawyers were on strike and
the counsel for the applicant could not
appear to cross-examine the witnesses
therefore, either the Court should have
deferred the cross-examination to another
date or should have offered services of an
amicus curiae to assist the applicant for
such purpose. Only when the applicant had
refused to avail of the services or had
consciously chosen not to cross-examine
those witnesses, then the right to crossexamine those witnesses could have been
forfeited.
Case Law discussed:
2012 (9) SCC 1

## Text

2 All] Ali Mohammad Vs. The State of U.P.
541
Alok Mohan Upadhyay, learned A.G.A.
appearing for the State.
2. It has been contended by the learned
counsel for the applicant that the applicant is
the father-in-law of the deceased. The
marriage between the deceased and applicant's
son, namely, Akbar Ali was solemnized in the
year 2013. Only general allegation has been
levelled against the applicant. There is no
dying declaration against the applicant. The
husband of the deceased is in jail. The
applicant has no other reported criminal
antecedent. The applicant is in jail.
3. Learned A.G.A. opposed the
prayer for bail.
4. Without expressing any opinion
on the merits of the case and considering
the nature of accusation and the severity
of punishment in case of conviction and
the
nature
of
supporting
evidence,
reasonable apprehension of tempering of
the witnesses and prima facie satisfaction
of the Court in support of the charge, the
applicant is entitled to be released on bail
in this case.
5.
Let the applicant Ali Mohammad
involved in Case Crime No. 686 of 2013
under Sections 498-A/304-B I.P.C., police
station Kotwali Sadar, District Unnao be
released on bail on his furnishing a personal
bond with two sureties each in the like
amount to the satisfaction of the court
concerned with the following conditions.
(i) The applicant shall file an
undertaking to the effect that he shall not
seek any adjournment on the dates fixed
for evidence when the witnesses are
present in court. In case of default of this
condition, it shall be open for the trial
court to treat it as abuse of liberty of bail
and pass orders in accordance with law.
(ii) The applicant shall remain
present before the trial court on each date
fixed, either personally or through his
counsel. In case of his absence, without
sufficient cause, the trial court may
proceed against him under Section 229-A
of the Indian Penal Code.
(iii) In case, the applicant misuses the
liberty of bail during trial and in order to
secure his presence proclamation under
Section 82 Cr.P.C. is issued and the applicant
fails to appear before the court on the date
fixed in such proclamation, then, the trial
court shall initiate proceedings against him,
in accordance with law, under Section 174-A
of the Indian Penal Code.
(iv)
The applicant shall remain
present, in person, before the trial court on
the dates fixed for (i) opening of the case,
(ii) framing of charge and (iii) recording of
statement under Section 313 Cr.P.C. If in
the opinion of the trial court absence of the
applicant is deliberate or without sufficient
cause, then it shall be open for the trial court
to treat such default as abuse of liberty of
bail and proceed against him in accordance
with law.
6. The case of the applicant is
distinguishable from co-accused Akbar
Ali.
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ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.04.2015
BEFORE
THE HON'BLE MANOJ MISRA, J.
Application U/S 482 No. 11323 of 2015
Santosh Sharma
 ...Applicant
Versus
State of U.P. & Anr.
..Opp. Parties
542
 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Applicant:
Sri Janardan Yadav
Counsel for the Opp.Parties:
A.G.A.
Cr.P.C. Section 482-Right of an accusedcross
-examination
the
prosecution
witness-when statement recorded-due to
strike of advocates-cross examination not
done-rejection
the
prayer
of
crossexamination on ground that-if allowed
would
encourage
to
strike-held-illegalvaluable rights of an accused can not be
forfeited-evidence
can
be
disclosed-if
accused refuse to accept service of amicus
curiae-not otherwise-order quashed.
Held: Para-8
In the instant case, admittedly, on the date
when those prosecution witnesses were
examined, the lawyers were on strike and
the counsel for the applicant could not
appear to cross-examine the witnesses
therefore, either the Court should have
deferred the cross-examination to another
date or should have offered services of an
amicus curiae to assist the applicant for
such purpose. Only when the applicant had
refused to avail of the services or had
consciously chosen not to cross-examine
those witnesses, then the right to crossexamine those witnesses could have been
forfeited.
Case Law discussed:
2012 (9) SCC 1
(Delivered by Hon'ble Manoj Misra, J.)
1. Heard learned counsel for the
applicant; the learned A.G.A. for the State
and perused the record.
2. The instant application has been
filed seeking quashing of an order dated
16.04.2015 passed by the Additional
Session Judge, Court No.8, Azamgarh in
S.T. No. 461 of 2013 by which the
application No. 26 Kha to enable the
counsel for the applicant to cross-examine
Seema Sharma and Vikas Sharma (the
prosecution witnesses), whose statements
were recorded while the counsels were on
strike, has been rejected.
3. The submission of the learned counsel
for the applicant is that on 11.03.2015 when the
examination-in-chief of the aforesaid two
witnesses was recorded, the lawyers were on
strike and therefore no one had appeared to
cross-examine the said witnesses and the right
to cross-examination was closed, therefore, in
the interest of justice application 26 Kha was
moved by the applicant to summon those
witnesses for allowing their cross-examination,
which has been wrongly rejected by the court
below on the ground that if such application is
allowed then it would encourage the lawyers to
be on strike.
4. It has been submitted that the
reason for rejection of the application is
not
legally
justified
since
crossexamination is a valuable right of an
accused, of which he should not be
deprived on fault of the lawyers.
5. Learned A.G.A. though sought to
support the lower court order but could
not point out anything material on record
which may go to show that the applicant
was at fault in not cross-examining the
witnesses, who were examined by the
Court.
6. In the case of Mohammed Ajmal
Mohammad Amir Kasab alias Abu
Mujahid v. State of Maharastra, reported
in 2012 (9) SCC 1 in paragraphs 474 and
477 of the report, the Apex Court had
observed as follows:-
"474. We, therefore, have no hesitation
in holding that the right to access to legal
aid, to consult and to be defended by a legal
2 All] Santosh Sharma Vs. State of U.P. & Anr.
543
practitioner, arises when a person arrested in
connection with a cognizable offence is first
produced
before
a
magistrate.
We,
accordingly, hold that it is the duty and
obligation of the magistrate before whom a
person accused of committing a cognizable
offence is first produced to make him fully
aware that it is his right to consult and be
defended by a legal practitioner and, in case
he has no means to engage a lawyer of his
choice, that one would be provided to him
from legal aid at the expense of the State.
The right flows from Articles 21 and 22(1) of
the Constitution and needs to be strictly
enforced. We, accordingly, direct all the
magistrates in the country to faithfully
discharge the aforesaid duty and obligation
and further make it clear that any failure to
fully discharge the duty would amount to
dereliction in duty and would make the
concerned magistrate liable to departmental
proceedings.
477. Every accused unrepresented by a
lawyer has to be provided a lawyer at the
commencement of the trial, engaged to
represent him during the entire course of the
trial.Even if the accused does not ask for a
lawyer or he remains silent, it is the
Constitutional duty of the court to provide
him with a lawyer before commencing the
trial. Unless the accused voluntarily makes
an informed decision and tells the court, in
clear and unambiguous words, that he does
not want the assistance of any lawyer and
would rather defend himself personally, the
obligation to provide him with a lawyer at
the commencement of the trial is absolute,
and failure to do so would vitiate the trial and
the resultant conviction and sentence, if any,
given to the accused (see Suk Das v. UT of
Arunachal Pradesh 97)."
7. Having considered the observations
of the apex court, this Court is of the view
that service of a lawyer is of paramount
importance to an accused. If, for some reason,
the counsel for the accused fails to appear,
then the court must offer service of an amicus
curiae to the accused. It is very difficult to
imagine as to how, in ordinary circumstances,
an accused could cross-examine a witness to
discredit his evidence. The right to crossexamine the prosecution witnesses is a very
valuable right of an accused and should not
mechanically or casually be forfeited unless
there are compelling reasons justifying the
same. Of course, the court may forfeit the
right to cross examine where, for no cogent
reason, either the counsel or the accused
refuses to cross-examine the witness offered
for cross-examination.
8. In the instant case, admittedly, on
the date when those prosecution witnesses
were examined, the lawyers were on
strike and the counsel for the applicant
could not appear to cross-examine the
witnesses therefore, either the Court
should
have
deferred
the
crossexamination to another date or should
have offered services of an amicus curiae
to assist the applicant for such purpose.
Only when the applicant had refused to
avail of the services or had consciously
chosen
not
to
cross-examine
those
witnesses, then the right to cross-examine
those witnesses could have been forfeited.
9. Accordingly, the order passed by
the court below is unsustainable in law
and is hereby set aside. The court below is
directed to pass a fresh order on the
application of the applicant for recall of
the witnesses keeping in mind the
observations made herein above.
10. The application stands allowed
to the extent indicated above.
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ORIGINAL JURISDICTION