Punjab-Haryana High Court
Harjit Kaur vs Harjeet Kaur on 22 August, 2012
Author: M.M.S. Bedi
Bench: M.M.S. Bedi
CRM M- 9823 of 2011 [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
CRM M-9823 of 2011
Date of Decision: August 22, 2012
Harjit Kaur
.....Petitioner
Vs.
Harjeet Kaur
.....Respondent
CORAM: HON'BLE MR. JUSTICE M.M.S. BEDI.
-.-
Present:- Mr. J.S. Lalli, Advocate
for the petitioner.
Mr. Saranpreet Gurna, Advocate
for the respondent.
-.-
M.M.S. BEDI, J.
The petitioner is facing proceedings under Section 138 of the Negotiable Instruments Act initiated by respondent.
The trial Court permitted the examination of a witness CW3- Surinderpal Singh produced by the complainant- respondent despite the fact that his name was neither mentioned in the list of witnesses attached with the complaint nor any application was filed for getting permission of the CRM M- 9823 of 2011 [2] Court to add his name. The affidavit produced by CW3 Surinder Pal Singh was sought to be discarded by moving an application by the petitioner.
The learned Magistrate vide order dated July 15, 2009 dismissed the application observing that although the complainant has not examined Surinder Pal Singh in her preliminary evidence and has not mentioned name of the same in the list of witnesses yet no prejudice was going to be caused because he had already tendered his affidavit in the Court and the case was pending for his cross-examination. The trial Court observed that as the rights of the petitioner stand protected, the application for discarding the statement of CW3 Surinder Pal Singh was dismissed and a direction was given to the petitioner's counsel to cross-examine CW3 Surinder Pal Singh.
A revision was filed by the petitioner in the Court of Additional Sessions Judge but the revision was dismissed observing that it was the discretion of the Court to allow examination and re-examination of any witness at any stage if it is required for effective adjudication of the matter. It was observed that such a power of the Court is inherent power and also vested in a Court by virtue of Section 311 Cr.P.C. While dismissing the revision petition, it was also held that revision against interim order was not maintainable.
Learned counsel for the petitioner has contended that the Courts below have acted illegally in dismissing the application for discarding the evidence of CW3 and revisional Court has not considered the CRM M- 9823 of 2011 [3] matter in context to the law laid down in State Rep. by Inspector of Police and others Vs. N.M.T. Joy Immaculate, 2004 (3) RCR (Crl.) 322, wherein it was held that interlocutory order is not defined in Criminal Procedure Code but ordinarily and generally, the expression 'interlocutory order' has been understood and taken to mean as a converse of the term 'final order' and that the order can be said to be a final order only if, in either event, the action will be determined.
I have considered the facts and circumstances of the present case. Without expression of any opinion whether the order passed by the trial Court for discarding the examination-in-chief in the shape of affidavit of CW3 is a revisable order, it is sufficient to observe that the trial Court has permitted the production of evidence without following the procedure of law. There is no controversy regarding the legal position that trial Court has got a jurisdiction under Section 311 Cr.P.C. to summon any person as a witness in case his evidence appears to be essential to the just decision of the case but at the same time, it cannot be ignored that the complainant is required to attach the list of witnesses, required to be examined. Admittedly, CW3 Surinder Pal Singh was not mentioned as a complainant's witness. It is a settled principle of law that any action taken without following the due procedure of law is not permitted in law. The remedy available to the complainant- respondent was to file an application under Section 311 Cr.P.C. requesting the Court to produce Surinder Pal Singh as a witness satisfying the Court that how his testimony is relevant for the just CRM M- 9823 of 2011 [4] decision of the case. The Court, after considering the application under Section 311 Cr.P.C. could have permitted the complainant- respondent to examine CW3, as the affidavit of CW3 has been placed on record without the permission of the Court, and despite the objection of the petitioner, no application was filed under Section 311 Cr.P.C. The Court had not mentioned the reason for permitting the examination of said witness. The order dated July 15, 2009 passed by Judicial Magistrate Ist Class, being an illegal order deserves to be set aside. The order does not mention as to how the testimony of CW3 Surinder Pal Singh is necessary for just decision of the case.
In view of the above circumstances, the petition is allowed. The order dated July 15, 2009 is hereby set aside as the same having been passed without adopting the procedure of law. The said order is an abuse of the process of the Court. However, it is observed that the rights of the respondent- complainant to summon CW3-Surinder Pal Singh in the exercise of powers under Section 311 Cr.P.C. will not be prejudiced in case the respondent- complainant is able to satisfy the Court as to how the testimony of CW3 is necessary for the just decision of the case. Parties are directed to appear before the trial Court on the date already fixed for further proceedings, in accordance with law.
August 22, 2012 (M.M.S.BEDI) sanjay JUDGE