Patna High Court
BRAHAMDEO YADAV @ BRAHMDEV YADAV @ BRAHAMADEV YADAVversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- SANDEEP KUMAR
Holding
The discharge of the prosecution witness without cross‑examination was erroneous, and the order was quashed, permitting the accused to cross‑examine the witness within a month.
Summary
The petitioners sought to quash an order dated 21‑08‑2019 that discharged a prosecution witness (PW‑2) without allowing the defence to cross‑examine her in a rape‑case (IPC §§376, 34). The trial court had discharged the witness because the petitioners' senior counsel failed to appear for cross‑examination, only a junior counsel was present. The High Court held that the discharge was erroneous as it denied the accused the statutory right to cross‑examine a prosecution witness. In the interest of justice, the order was set aside and the accused were directed to cross‑examine PW‑2 within one month of the order. The application was therefore allowed, and the earlier order was quashed.
Issues considered
- Whether discharging a prosecution witness without allowing the defence to cross‑examine violates the accused’s right to a fair trial under criminal procedure law.
- Whether the Sessions Judge’s order can be quashed on the ground of erroneous consideration of law and facts.
Legislation cited
- Indian Penal Code — s. 34, 376
Subjects
- criminal procedure
- cross‑examination
- witness discharge
- right to defence
- rape case
- quash order
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.73412 of 2019
Arising Out of PS. Case No.-44 Year-2012 Thana- JAGDISHPUR District- Bhagalpur
======================================================
1. Brahamdeo Yadav @ Brahmdev Yadav @ Brahamadev Yadav Son Of
Anirudh Yadav Resident Of Village- Bangdiha, P.S.- Goradih, District-
Bhagalpur.
2. Kishore Yadav @ Kishori Yadav @ Raj Kishore Yadav Son Of Nena Yadav
Resident Of Village- Bangdiha, P.S.- Goradih, District- Bhagalpur.
... ... Petitioner/s
Versus
1. The State Of Bihar
2. Laxmi Devi Wife Of Jaldhar Prasad Yadav Resident Of Village- Bangdiha,
P.O.- Kasimpur, P.S.- Goradih, District- Bhagalpur.
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Ravi Prakash Dwivedi, Advocate
Mr. Sourabh Raj, Advocate
Mr. Raushan Kumar, Advocate
Mr. Praveen Kumar
For the Opposite Party/s : Mr. Jitendra Kumar Singh
Mr. Rana Pratap Singh
Mr. Ranjan Kumar Jha
======================================================
CORAM: HONOURABLE MR. JUSTICE SANDEEP KUMAR
ORAL ORDER
3 27-01-2026 Heard the learned counsel for the petitioners, learned
APP for the State and the learned counsel for the O.P. No. 2.
2. The present application has been filed for quashing
the impugned order dated 21.08.2019 passed in S.T. No. 470 of
2013 (arising out of Jagdishpur P.S. Case No. 44 of 2012,
registered for the offences under sections 376/34 Indian Penal
Code) passed by the learned 1st Additional District and Sessions
Patna High Court CR. MISC. No.73412 of 2019(3) dt.27-01-2026
2/3
Judge, Bhagalpur, by which the petition of the petitioners to
recall the informant (opposite party no.2) of the aforesaid case
for her cross-examination as she stood discharged without cross-
examination on earlier occasion on erroneous consideration of
law and facts.
3. From the impugned order it appears that the lawyer
engaged by the petitioners could not appear for the cross-
examination rather his junior counsel appeared and told the
Court that his senior would come after lunch but the counsel for
the petitioners did not come after lunch for cross-examination
and in such a situation, the witnesses were discharged without
cross-examination.
5. In the interest of justice, the prosecution witness
should have been allowed to be cross-examined by the defence.
In view of the facts and circumstances of the case, the present
application is allowed. Accordingly, the impugned order dated
21.08.2019 passed in S.T. No. 470 of 2013 passed by the
learned 1st Additional District and Sessions Judge, Bhagalpur
(arising out of Jagdishpur P.S. Case No. 44 of 2012), is hereby
quashed.
6. The accused persons are allowed to cross-examine
P.W-2 who has been discharged without cross-examination and
Patna High Court CR. MISC. No.73412 of 2019(3) dt.27-01-2026
3/3
the aforesaid exercise must be done within one month of
communication/production of a copy of this order.
(Sandeep Kumar, J)
Shishir/-
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