Trial Stands Vitiated If Accused Is Forced To Cross-Examine Witness Without Defence Counsel: Delhi High Court
A petition was filed by several accused persons who had challenged a trial court order rejecting their application seeking a further opportunity to cross-examine a prosecution witness.
Justice Girish Kathpalia, Delhi High Court
The Delhi High Court has ruled that requiring an accused person to cross-examine a prosecution witness without the assistance of legal counsel strikes at the very foundation of a fair trial and renders the entire proceedings vitiated.
A petition was filed by several accused persons who had challenged a trial court order rejecting their application seeking a further opportunity to cross-examine a prosecution witness.
A Bench of Justice Girish Kathpalia observed, “In the trial proceedings where the accused in the absence of defence counsel, is called upon to cross-examine a witness, it is not just the accused who suffers injustice. It is the entire trial which gets vitiated.”
The Court further directed that a copy of the judgment be circulated to all Principal District and Sessions Judges in Delhi, with a request that it be shared among all courts conducting criminal trials, so as to ensure that such lapses do not recur in future.
The High Court noted that grave injustice had occurred when the prosecution witness had appeared for cross-examination for the first time, and the accused were neither accompanied by their regular counsel nor by any proxy counsel. Despite the absence of legal representation, the accused were asked to proceed with the cross-examination.
The Court observed that although the trial court was not persuaded by the explanation offered for the absence of defence counsel, it nonetheless had a duty to ensure that no miscarriage of justice took place. The Court emphasized that even in such circumstances, the trial court ought to have exercised its inherent powers to safeguard the accused’s right to a fair trial rather than compelling them to conduct cross-examination without legal assistance.
The High Court clarified that, “In a case where the trial court is convinced that the accused is somehow protracting the proceedings in order to frustrate the prosecution witnesses, the trial court instead of calling upon the accused in the absence of legal assistance to cross-examine the witness, should either appoint an amicus curiae or should direct the local legal services authority to send some legal aid counsel. The purpose is that the fairness and purity of trial must be kept.”
The Court also noted that nothing prevents a trial court from itself putting relevant questions to a prosecution witness if necessary, as the ultimate purpose of a criminal trial is the discovery of truth.
Accordingly, the Court set aside the impugned trial court order and directed that the accused be granted another opportunity to cross-examine the prosecution witness through their counsel.
Cause Title: Ram Swaroop Gupta & Ors. v. State of NCT Of Delhi & Anr., [2026:DHC:514]
Appearance:
Petitioners: Advocates Ajatshatru Singh Rawat and Naimishi Verma
Respondents: Advocate Sanjeev Sabharwal