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2006 DIGILAW 3658 (PNJ)

Surjit Singh v. State Of Punjab

2006-09-29

T.P.S.MANN

body2006
Judgment T.P.S.Mann, J. 1. The petitioners were being tried by Additional Chief Judicial Magistrate, Jalandhar for offences under Sections 323/324/427/452/506/148/149 IPC. One Avtar Singh was examined by the prosecution as a PW on 5.8.2005. He was thereafter offered for cross- examination. The defence counsel representing the petitioners was not available at that time and an oral request made on his behalf that the cross- examination be deferred for some time as the counsel was arguing the matter before another Court. However, this request of the defence was not accepted and the trial Court closed the cross-examination of the said witness, namely, Avtar Singh by making a note `nil (opportunity given). Later in the day before the Court time was over, the defence counsel filed an application for recalling the aforementioned order of closing the cross-examination of Avtar Singh witness. Notice of the application was given to the State. Ultimately the said application was dismissed by the trial Court on 6.2.2006 by observing that the application did not disclose any cogent basis for recalling the witness. 2. Learned counsel for the petitioners submitted that Avtar Singh was a key witness of the prosecution, who was required to be cross-examined by the defence. In case the prayer of the petitioners for the cross-examination of the said witness was not allowed, the defence would be prejudiced. Further that on 5.8.2005, the counsel representing the petitioners/accused was busy in another Court and an oral request was also made on behalf of the said counsel that the cross-examination be deferred for some time. The said request was not entertained and the cross-examination was closed by order, terming it as nil after opportunity having been given. Further that on the same very day i.e. on 5.8.2005, an application was filed by the accused for recalling the earlier order and allowing them to cross-examine the witness but the same has also declined for no sufficient reasons. 3. Learned counsel for the State while opposing the prayer of the petitioners submitted that the defence was intentionally harassing the witness by delaying his cross-examination. 4. It is the right of the accused to cross-examine a witness. The defence could ask any question to a prosecution witness in cross-examination to test his veracity and shake his credibility. A denial of right to cross-examine the witness is nothing but an intrusion of legal right of the accused. 4. It is the right of the accused to cross-examine a witness. The defence could ask any question to a prosecution witness in cross-examination to test his veracity and shake his credibility. A denial of right to cross-examine the witness is nothing but an intrusion of legal right of the accused. In case the counsel representing the accused was not available and an oral request had been made on his behalf for deferring the cross-examination for some time, the trial Court ought to have acceded to such a request especially when it is seen from the order dated 5.8.2005 that later in the day or may be a couple of minutes later after the cross-examination of Avtar Singh, witness was closed by order, the defence counsel reached the Court and then made an application for recalling the order, closing the cross-examination of the witness. Perusal of the zimni order which is quoted at page No. 16 of the present petition shows that the entire proceedings of 5.8.2005 conducted by the trial Court were recorded in one order, first part pertains to the fact that PW Avtar Singh was present and examined whereas the second part showed that the defence counsel had made an application for recalling the order and allowing the accused to cross-examine the witness. This is clear indication that the application for recalling the order was promptly made by the accused and even before that, as alleged in the petition by the petitioners, that an oral request had also been made that the cross-examination be kept pending since the defence counsel was busy in another Court. In view of the same, the order passed by the trial Court in rejecting the application of the defence for recalling the order dated 5.8.2005 while not permitting the recalling of Avtar Singh witness cannot be sustained and has to be set aside. 5. Accordingly, the present petition is accepted and the order passed by Additional Chief Judicial Magistrate, Jalandhar on 6.2.2006 while dismissing application of the defence for recalling the witness, namely, Avtar Singh, is set aside. The request of the defence for recalling Avtar Singh PW is accepted. The trial Court shall recall Avtar Singh for his cross-examination by the defence. 5. Accordingly, the present petition is accepted and the order passed by Additional Chief Judicial Magistrate, Jalandhar on 6.2.2006 while dismissing application of the defence for recalling the witness, namely, Avtar Singh, is set aside. The request of the defence for recalling Avtar Singh PW is accepted. The trial Court shall recall Avtar Singh for his cross-examination by the defence. However, it is made clear that only one opportunity be given to the defence to cross-examine Avtar Singh in view of the fact that the case pertains to the year 2000.