Crl. Misc. No. M-5251 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Misc. No. M-5251 of 2010 (O&M) Date of decision: August 17, 2010 Kamaljit Singh ...Petitioner Versus State of Punjab ...Respondent CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present: Mr. GN Malik, Advocate, for the petitioner. Mr. Raghbir Chaudhary, Sr. DAG, Punjab. GURDEV SINGH, J. Heard. This petition under Section 482 of the Criminal Procedure Code has been filed by Kamaljit Singh-petitioner/accused for quashing order dated 2.1.2009 passed by the Judicial Magistrate Ist Class, Rajpura, vide which his application for recalling Bachittar Singh (PW-1) for cross- examination was dismissed. FIR No. 65 dated 25.5.2002 was registered against the present petitioner under Sections 279 and 304 IPC at Police Station Banur, on the statement of Bachittar Singh. After completion of the investigation, challan was presented against him in the court and charges were framed. Thereafter, Bachittar Singh was examined as PW-1 by the prosecution. No question was put to him during the cross-examination by the learned counsel for the petitioner. Accordingly, the petitioner moved an application for recalling that prosecution witness for his cross-examination but it was Crl. Misc. No. M-5251 of 2010 2 dismissed by the aforesaid order. According to the petitioner, he had given explanation/reason for non cross-examination of the said witness but the same was not taken into consideration by the Magistrate. Though in the application, it was pleaded by the petitioner that his previous counsel Shri K.S. Baniwal did not cross-examine this witness, yet from the certified copy of the order dated 31.10.2003, on which date the witness was examined in the court, it is very much clear that his counsel was not present as his presence was never recorded in that order. Bachittar Singh was one of the material witnesses being the complainant who had witnessed the accident with his own eyes. In all fairness, the Judicial Magistrate should have recalled him for cross- examination after the application was moved by the petitioner, as the courts are meant for dispensing the justice and not for penalizing the accused for some fault on his part or on the part of his counsel. Recalling of this witness for his further cross-examination is for just decision of the case, as the testimony made by him during the examination-in-chief is to be tested on the touchstone of cross-examination. Accordingly, this petition is allowed. The order dated 2.1.2009 is set aside. The Magistrate is directed to recall Bachittar Singh in order to enable the petitioner to cross-examine him. The petition is disposed of accordingly. August 17, 2010 (GURDEV SINGH ) prem JUDGE