Punjab-Haryana High Court
Arun Kumar vs State Of Punjab on 16 April, 2009
Author: S.S. Saron
Bench: S.S. Saron
In the High Court of Punjab and Haryana at Chandigarh
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Criminal Misc. No.M-6545 of 2009
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Date of decision:16.4.2009
Arun Kumar
.....Petitioner
v.
State of Punjab
.....Respondent
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Present: Ms. Aman Sibia, Advocate for the petitioner.
Mr. Sudhir Nehra, Additional Advocate General, Punjab
for the respondent-State.
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S.S. Saron, J.
Reply of Shri Harmohan Singh, PPS, Deputy Superintendent of Police, Industrial Area, Ludhiana on behalf of the respondent filed in Court today is taken on record.
This petition under Section 482 of the Code of Criminal Procedure (`Cr.P.C.' - for short) has been filed seeking quashing of the order dated 16.10.2008 (Annexure-P.2) passed by the learned Judicial Magistrate Ist Class, Ludhiana whereby the application filed by the petitioner, who is accused in the case, for cross-examination of Pritpal Singh (PW-4) and Ashok Kumar (PW-5) has been declined.
Learned counsel for the petitioner has submitted that the counsel for the petitioner was not available due to unavoidable circumstances on 28.11.2006 and accordingly, the cross-examination of both the aforesaid witnesses, namely, Pritpal Singh (PW-4) and Ashok Kumar (PW-5) was declared nil. It is submitted that in exercise of powers Cr. Misc. No.M-6545 /2009 [2] under Section 311 Cr.P.C. the Court is empowered to recall and re-examine the witnesses for just decision of the case. In support of her contention, learned counsel cites Surjit Singh and others v. State of Punjab, 2007 (1) RCR (Cr.) 547 (P&H).
In response, learned counsel for the State has submitted that the petitioner was granted full opportunity to cross-examine Pritpal Singh (PW-
4) and Ashok Kumar (PW-5), however, despite that the petitioner did not cross-examine the said witnesses even though they were present in Court on 28.11.2006. Therefore, the application seeking their cross-examination has rightly been declined.
I have given my thoughtful consideration to the contentions of the learned counsel for the parties. A perusal of the impugned order dated 16.10.2008 (Annexure-P.2) would show that the learned trial Court has declined the opportunity to cross-examine the aforesaid witnesses primarily on the ground that the same would amount to reviewing his earlier order whereby the cross-examination of the witnesses was declared nil. It may, however, be noticed that Section 311 Cr.P.C. confers power on a Court to summon the material witnesses or examine persons present. It is provided therein that any Court may at any stage of any inquiry, trial or other proceedings summon any person as a witness or cross-examine any person in attendance though not summoned as a witness or recall and re-examine any person already examined; and Court shall summon and examine or recall, re-examine any such person if his evidence appears to it to be essential to the just decision of the case. Therefore, the power to recall and re-examine witnesses is specifically provided. The rider, however, is that the evidence of the witness who is summoned and examined or recalled or Cr. Misc. No.M-6545 /2009 [3] is to be re-examined as the case may be, should appear to the Court to be essential for the just decision of the case. A perusal of the interim order dated 26.10.2006 would show that Pritpal Singh (PW-4) and Ashok Kumar (PW-5) had not appeared in Court on the said date and they were ordered to be summoned through bailable warrants for 28.11.2006. On the said date counsel for the petitioner was not present. The learned trial Court observed that Pritpal Singh (PW-4) and Ashok Kumar (PW-5) were present and full opportunity was given to the accused to cross-examine them but the accused (petitioner) failed to cross-examine them. As such their cross-examination was declared as nil.
In the criminal administration system of justice a litigant has to rely heavily on the expertise and legal literacy of his counsel for conducting the trial and cross-examination of the witnesses and it is not as if he on his own can cross-examine them. In view of the nature of the present adversary legal system, the litigants almost always appear through their counsel. The obligation of the party is to select his advocate, brief him, pay his fees and then trust that the advocate would handle his case. The litigating party normally has not much knowledge of the Court's procedure and even of the intricacies involved in the conduct of trial and cross- examination of witnesses. It is for this reason that he is dependent on the counsel engaged by him and he remains supremely confidant that his counsel would look after his interest. Therefore, it could not be expected that the petitioner despite being granted an opportunity to cross-examine the witnesses who were present could in the absence of his counsel cross- examine them. Therefore, if for some reason the counsel was not available, no prejudice would be caused in case the witnesses are recalled and their Cr. Misc. No.M-6545 /2009 [4] cross-examination is conducted. The witnesses who are to be recalled can be compensated by payment of costs. The cross-examination of the witnesses is essential for just decision of the case. In Surjit Singh's case (supra), this Court considered the case where PWs had been examined but opportunity of cross-examination was not given as defence counsel was not available as he was arguing before another Court. However, on the same day an application for recalling of the witnesses was made which was rejected. The order of rejection was set aside and the trial Court was directed to recall the witnesses by granting one opportunity to the defence to cross-examine them. In the circumstances, in the present case as well one opportunity is liable to be granted to the petitioner to enable him to cross- examine the witnesses.
Accordingly, the criminal miscellaneous petition is allowed and the impugned order dated 16.10.2008 (Annexure-P.2) is set aside. The learned trial Court shall recall the witnesses, namely, Pritpal Singh (PW-4) and Ashok Kumar (PW-5) and grant one effective opportunity to the petitioner to cross-examine them. The petitioner shall pay costs of Rs.1,000/- each to the witnesses, namely, Pritpal Singh (PW-4) and Ashok Kumar (PW-5) for their appearance.
April 16, 2009. (S.S. Saron) Judge *hsp*