1 2025:CGHC:17990 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRMP No. 1346 of 2025 1 - Indrajeet Mahto S/o Ram Chandra Mahto Aged About 45 Years R/o Lal Khadan, Village - Mahmand, Police Station - Torwa, District- Bilaspur (C.G.) ... applicant versus 1 - State Of Chhattisgarh Through - Station House Officer, Police Station - Sarkanda, District- Bilaspur (C.G.) ... Respondent(s) For applicant : Mr. Rajeev Kumar Dubey, Advocate For Respondent(s) : Ms. Sunita Manikpuri, Dy. G.A. Hon’ble Shri Justice Ravindra Kumar Agrawal, J. Order on board 21.04.2025. 1. The petitioner has filed the present Criminal Miscellaneous Petition against the order dated 01-04-2025 passed by the learned Special Judge (NDPS), Bilaspur, in 2 Special Sessions Case No. 10/2024, whereby the application filed by the petitioner under Section 348 of BNSS, 2023, is dismissed. 2. The brief facts of the case are that the petitioner is an accused in Special Sessions Case No. 10/2024, pending before the learned Special Judge (NDPS), Bilaspur, and facing trial for the offence under Sections 21 and 22 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, “the NDPS Act”). In this case, the prosecution witnesses are being examined, and the case was fixed for recording evidence of the investigating officer, P.W. 11, Mr. B. N. Banafar. Earlier, the case was fixed for recording of his evidence on 06-02-2025, and when he appeared before the learned trial court for recording of his evidence, the counsel representing the petitioner/accused had refused to cross-examine him and after recording the chief-examination in the presence of the petitioner/accused, the case was adjourned for 07-02-2025 for appointing another counsel and to cross- examine the witness P.W. 11. On 07-02-2025, when the witness Mr. B. N. Banafar appeared for his cross-examination, the counsel earlier appearing for the petitioner/accused moved an application under Section 94 read with Section 346 of BNSS, 2023, and prayed for stay of the proceeding till the application is decided and then the learned trial court has stayed the cross-examination of the witness P.W. 11 and adjourned the case. On 22-02-2025, the application filed by the petitioner/accused is decided, and the same is dismissed and the case was fixed for 07-03-2025 for the cross-examination of P.W. 11. On 07-03-2025, when the witness Mr. B. N. Banafar, P.W. 11 again appeared before the learned trial court for his cross-examination, the counsel appearing for the petitioner/accused moved an application for adjournment of the proceeding as his counsel Mr. Rajeev Kumar Dubey had gone to Korba in another case. The application of the petitioner/accused was rejected, and the right to cross-examine the witness P.W. 11 was forfeited, and the case was fixed for 13-03-2025 for recording of the accused's statement under Section 351 of BNSS, 2023. The petitioner/accused did not appear in the proceeding on 13-03-2025 and filed an application for 3 condonation of his non-appearance, which was allowed, and the case was adjourned for 21-03-2025. On 21-03-2025, an application under Section 348 of the BNSS, 2023 has been filed by the petitioner/accused for recalling the witness Mr. B. N. Banafar (P.W. 11) for his cross-examination on the ground that on 07-03- 2025, the original counsel of the accused had gone to Korba and in his absence the documents are being marked exhibited, he being the investigating officer is an important witness, and required to be cross-examine by him in support of the defence of the accused. The application of the petitioner/accused is rejected by the learned trial court on 01-04-2025, and the case is fixed for 07-04-2025 for the accused’s statement. The order dated 01-04-2025 is under challenge in the present petition. 3. Learned counsel for the petitioner/accused would submit that due to bona fide reasons, the witness Mr. B. N. Banafar (P.W. 11) could not be cross-examined. The witness is an important witness, and forfeiting the right of the accused from cross-examine would prejudice his defence. The cross-examination is a valuable right of an accused that cannot be taken away in such a manner. The delay or inconvenience caused to the court may be compensated by imposing a cost upon the accused. The accused is on bail and has every right to defend his case. He, being the investigating officer of the case and the matter pertains to the offence under the NDPS Act, his cross-examination is necessary for just decision of the case. Therefore, one opportunity to cross-examine the witness P.W. 11, Mr. B. N. Banafar, may be granted to the petitioner/accused in the interest of justice. 4. On the other hand, learned counsel appearing for the state opposes the prayer made by the petitioner/accused and submitted that the accused wanted to delay the proceeding of the case and unnecessarily took adjournment when the witness appeared before the court for recording of his evidence. The conduct of the accused is not bona fide. Therefore, he is not entitled to any relief as claimed by him. 4 5. I have heard learned counsel for the parties and perused the material annexed with the petition. 6. The matter pertains to the adjournment of the proceeding for cross-examination of the witness, for one or other grounds taken by the petitioner/accused. Section 346 of the BNSS, 2023 provides the power to adjourn the proceeding of the case and 4th proviso to Section 346 (2) of the BNSS, 2023 states that:- 346. Power to postpone or adjourn proceedings. …………… (2) If the Court, after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody: Provided that no Court shall remand an accused person to custody under this section for a term exceeding fifteen days at a time: Provided further that when witnesses are in attendance, no adjournment or postponement shall be granted, without examining them, except for special reasons to be recorded in writing: Provided also that no adjournment shall be granted for the purpose only of enabling the accused person to show cause against the sentence proposed to be imposed on him: Provided also that- (a) no adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of that party; (b) where the circumstances are beyond the control of a party, not more than two adjournments may be granted by the Court after hearing the objections of the other party and for the reasons to be recorded in writing; (c) the fact that the advocate of a party is engaged in another Court, shall not be a ground for adjournment; (d) where a witness is present in Court but a party or his advocate is not present or the party or his advocate though present in Court, is not ready to examine or cross-examine the witness, the Court may, if thinks fit, record the statement of the witness and pass such orders as it thinks fit dispensing with the examination-in-chief or cross-examination of the witness, as the case may be. 5 7. 5 7. From perusal of the clauses (c) and (d) of the 4th proviso to Section 346(2) of the BNSS, 2023, it appears that the advocate of a party is engaged in another court, shall not be a ground for adjournment and where a witness is present in the court and the advocate of a party is not present in the court or not ready to cross- examine the witness, court may, if thinks fit, record statement of the witness and pass such orders as it thinks fit dispensing with the examination-in-chief or cross- examination of the witness, as the case may be. 8. In the matter of “Ayaaubkhan Noorkhan Pathan v. State of Maharashtra”, 2013 (4) SCC 465, the Hon’ble Supreme Court has held in para 24 to 30 of its judgement that:- 24. A Constitution Bench of this Court in State of M.P. v. Chintaman Sadashiva Waishampayan1 held that the rules of natural justice require that a party must be given the opportunity to adduce all relevant evidence upon which he relies, and further that, the evidence of the opposite party should be taken in his presence, and that he should be given the opportunity of cross-examining the witnesses examined by that party. Not providing the said opportunity to cross-examine witnesses, would violate the principles of natural justice. (See also Union of India v. T.R. Varma2, Meenglas Tea Estate v. Workmen3, Kesoram Cotton Mills Ltd. v. Gangadhar4. New India Assurance Co. Ltd. v. Nusli Neville Wadia, Rachpal Singh v. Gurmit Kaur, Biecco Lawrie Ltd. v. State of W.B. and State of U.P. v. Saroj Kumar Sinha). 25. In Lakshman Exports Ltd. v. CCE5, this Court, while dealing with a case under the Central Excise Act, 1944, considered a similar issue i.e permission with respect to the cross-examination of a witness. In the said case, the assessee had specifically asked to be allowed to cross- examine representatives of the firms concerned, to establish that the goods in question had been accounted for in their books of accounts, and that excise duty had been paid, The Court held that such a request could not be turned down, as the denial of the right to cross-examine, 1 AIR 1961 SC 1623 2 AIR 1957 Sc 882 3 AIR 1963 SC 1719 4 AIR 1964 SC 708 5 (2005) 10 SCC 634 6 would amount to a denial of the right to be heard i.e. audi alteram partem. 26. In New India Assurance Co. Ltd. v. Nusli Neville Wadia, this Court considered a case under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 and held as follows: (SCC p. 295, para 45) "45. If some facts are to be proved by the landlord, indisputably the occupant should get an opportunity to cross-examine. The witness who intends to prove the said fact has the right to cross- examine the witness. This may not be provided by under the statute, but it being a part of the principles of natural justice should be held to be indefeasible right." (emphasis added) In view of the above, we are of the considered opinion that the right of cross-examination is an integral part of the principles of natural justice. 27. In K. L. Tripathi v. SBI6, this Court held that, in order to sustain a complaint of the violation of the principles of natural justice on the ground of absence of absence of opportunity of cross-examination, it must be established that some prejudice has been caused to the appellant by the procedure followed. A party, who does not want to controvert the veracity of the evidence on record, or of the testimony gathered behind his back, cannot expect to succeed in any subsequent grievance raised by him, stating that no opportunity of cross- examination was provided to him, specially when the same was not requested, and there was no dispute regarding the veracity of the statement. (See also Union of India v. P.K. Roy7 and Channabasappa Basappa Happali v. State of Mysore8.) In Transmission Corpn. of A.P. Corpn. of A.P. Ltd. v. Sri Rama Krishna Rice Mill9, this Court held: (SCC p. 80, para 9) "9. In order to establish that the cross-examination is necessary, the consumer has to make out a case for the same. Merely stating that the statement of an officer is being utilised for the purpose of adjudication would not be sufficient in all cases. If an application is made requesting for grant of an opportunity to cross-examine any official, the same has to be considered by the adjudicating authority who shall have to either grant the request or pass a reasoned order if he chooses to reject the application. 6 (1984) 1 SCC 43 7 AIR 1968 SC 850 8 (1971) 1 SCC 1 9 (2006) 3 SCC 74 7 In that event an adjudication being concluded, it shall be certainly open to the consumer to establish before the appellate authority as to how he has been prejudiced by the refusal to grant an opportunity to cross-examine any official." 28. The meaning of providing a reasonable opportunity to show cause against an action proposed to be taken by the Government, is that the government servant is afforded a reasonable opportunity to defend himself against the charges, on the basis of which an inquiry is held. The government servant should be given an opportunity to deny his guilt and establish his innocence. He can do so only when he is told what the charges against him are. He can, therefore, do so by cross-examining the witnesses produced against him. The object of supplying statements is that, the government servant will be able to refer to the previous statements of the witnesses b proposed to be examined against him. Unless the said statements are provided to the government servant, he will not be able to conduct an effective and useful cross-examination. 29. In Rajiv Arora v. Union of India10 this Court held: (SCC p. 310, paras 13-14) "13.... Effective cross-examination could have been done as regards the correctness or otherwise of the report, if the contents of them were proved. The principles analogous to the provisions of the Evidence Act as also the principles of natural justice demand that the maker of the report should be examined, save and except in cases where the facts are admitted or the witnesses are not available for cross-examination or similar situation…… 14. The High Court in its impugned judgment proceeded to consider the issue on a technical plea, namely, no prejudice has been caused to the appellant by such non-examination. If the basic principles of law have not been complied with or there has been a gross violation of the principles of natural justice, the High Court should have exercised its jurisdiction of judicial review." 30. The aforesaid discussion makes it evident that, not only should the opportunity of cross-examination be made available, but it should be one of effective cross-examination, so as to meet the requirement of the principles of natural justice. In the absence of such an opportunity, it cannot be held that the matter has been decided in accordance with law, as cross-examination is an integral part and parcel of the principles of natural justice. 10 (2008) 15 SCC 306 8 9. When an application was made by the petitioner/accused for adjournment on certain grounds, the learned trial court, instead of forfeiting the right to cross- examine the witness, should have granted another opportunity to cross-examine the witness, P.W. 11 in the interest of justice and to decide the case. Considering the facts and circumstances of the case, as well as the aforesaid law laid down by the Hon’ble Supreme Court, the learned trial court should have afforded one opportunity to the petitioner/accused to cross-examine the witness P.W. 11, Mr. B.N. Banafar, as the valuable right of the accused is hampered if he would not be permitted to cross-examined him. Cross-examination of a witness is an integral part of the fair and effective justice delivery system and the principles of natural justice. Instead of forfeiting the right to cross-examine the witness, this court is of the opinion that one more opportunity should be granted to the petitioner/accused to cross-examine the witness, P.W. 11, Mr. B. N. Banafar. Since the petitioner/accused is on bail, some cost may also be imposed upon him for causing delay in the case. 10. Therefore, in the facts and circumstances of the case, and also in the light of the aforesaid judgement of Ayaaubkhan (supra), this court is of the considered opinion to grant one more opportunity to the petitioner/accused to cross-examine the witness P.W.11, Mr. B. N. Banafar, subject to payment of cost of Rs. 3000/- payable to the prosecution which should be deposited in Government fund before starting the cross-examination of the witness. 11. Therefore, the impugned order dated 01-04-2025 (Annexure P-1) is hereby set aside and the learned trial court is directed to grant one more opportunity to the petitioner/accused to cross-examine the witness P.W. 11, Mr. B. N. Banafar and shall fix a date for the same. It is made clear that on the date so fixed by the learned trial court for cross-examination of the witness P.W. 11, Mr. B. N. Banafar, no adjournment shall be granted to the petitioner/accused on any ground which beyond his control, and if, the petitioner/accused failed to cross-examine the witness, his right to cross-examine the witness should be forfeited and the learned 9 trial court is free to proceed further as provided under Section 346 of the BNSS, 2023. 12. With the aforesaid observation, the petition is allowed. Sd/- (Ravindra Kumar Agrawal) Judge Sagrika SAGRIKA AGRAWAL Digitally signed by SAGRIKA AGRAWAL Date: 2025.04.22 17:02:06 +0530