CRM No. M 17028 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -- CRM No. M 17028 of 2010 Date of decision: 15.03.2011 Paramjit Singh ........ Petitioner Versus State of Punjab and another .......Respondent(s) Coram: Hon'ble Ms Justice Nirmaljit Kaur -.- Present: Mr. B S Bali, Advocate for the petitioner Mr. J S Brar, AAG, Punjab for the respondent State -.- 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? 3. Whether the judgment should be reported in the Digest? Nirmaljit Kaur, J. This is a petition under Section 482 Cr.P.C for quashing of the impugned order dated 05.03.2010 (P1) passed by the Judicial Magistrate Ist Class, Ludhiana, vide which, application filed by the petitioner for recalling the complainant has been dismissed. It is contended by the learned counsel for the petitioner that the complainant - respondent No. 2 (Ajmer Singh Matharoo) was partly examined in chief on 28.02.2006 and his further examination in chief was deferred as the witness had not brought the copy of the sale deed. PW was bound down for the next date and he was directed to bring the entire record CRM No. M 17028 of 2010 2 and case was adjourned for 25.03.2006. On the next date of hearing, complainant did not appear before the trial Court. After a gap of 2 ½ years, complainant/respondent No. 2 moved an application for transfer of the case before Shri G K Rai, Sessions Judge, Ludhiana and case was transferred to the Court of Shri K K Bansal, JMIC, Ludhiana. The counsel for the petitioner appeared in the Court and moved an application for exemption on behalf of accused Avtar Singh. The personal appearance of the accused Avtar Singh was exempted by the trial Court. On 12.11.2008, Shri K K Bansal, JMIC, Ludhiana was on leave. Counsel for the petitioner went for some urgent work. Meanwhile, the case was transferred to the Court of Shri Kamaljit Singh, JMIC, Ludhiana on same day. An oral request for short adjournment was made on behalf of counsel for the petitioner. The request was not accepted. Due to this reason, the petitioner could not cross examine the complainant and the trial Court instead of deferring the cross examination, treated the cross examination nil and the case was adjourned for 02.12.2008 for remaining prosecution evidence. When the petitioner came to know that the trial Court has not deferred the cross examination of the complainant, then petitioner filed an application for recalling the complainant/respondent No. 2. Copy of the application was also supplied to the opposite counsel and the case was adjourned for 03.01.2009 for filing the reply of the application. No reply was filed on 03.01.2009. Reply was finally filed on 28.01.2009. Thereafter, on 05.03.2010, the JMIC, Ludhiana dismissed the application for recalling the complainant on the ground that sufficient opportunities have already been afforded for cross examination but he failed to cross examine the complainant. CRM No. M 17028 of 2010 3 Learned State counsel, on the other hand, vehemently opposed the prayer made by the petitioner on the ground that respondent/complainant is residing abroad and it is very difficult to get his presence secured. It is further submitted that the petitioner was afforded sufficient opportunities to cross examine the complainant but he failed to do so. As such, no further opportunity should be granted to the petitioner. Heard. It is not disputed that the respondent/complainant (Ajmer Singh Matharoo) was partly examined in chief on 28.02.2006 and his further examination in chief was deferred as the witness had not brought the copy of the sale deed. Thereafter, he was bound down for 12.11.2008 vide order dated 06.11.2008. It is evident from the zimini orders placed on record that the complainant was bound down for cross examination for the first time for 12.11.2008. On that date, Shri K K Bansal, JMIC, Ludhiana was on leave and as such, the matter was transferred from the Court of Shri K K Bansal, JMIC, Ludhiana to the Court of Shri Kamaljit Singh, JMIC, Ludhiana on the same day. There is no reason to disbelieve the learned counsel for the petitioner/accused that counsel for the petitioner (before trial Court) had to leave the court premises at about 12.30. p.m. for some urgent work and he was not aware that in the meantime, the case would be fixed before another Court as was done in the present case. As such, the counsel for the petitioner could not be present in Court to cross examine the complainant on 12.11.2008. As a result, the complainant was duly cross examined on behalf of accused Satpal, Daljit and Balwinder Singh. Whereas, the present petitioner was the main accused and cross examination by main accused was important. CRM No. M 17028 of 2010 4 Section 311 Cr.P.C gives ample powers to the Court to re- examine and re-call the witness. Section 311 Cr.P.C reads as under:- “311. Power to summon material witness, or examine person present. Any court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person its a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case.” In the facts of the present case, it cannot be said that the petitioner had ample and sufficient opportunity to cross examine the complainant. Moreover, It is not their case that the accused petitioner is any way trying to delay the proceedings or he or his counsel was negligent or careless in any manner or purposely did not cross examine the complainant on the said date. In fact, every effort was made to make things convenient for the complainant. It is evident from order dated 12.11.2008 that the learned Session Judge had directed the recording of statement and cross examination of the complainant on the same day itself as he had to go abroad. Thus, after the complainant was cross examined by other accused, the same qua the petitioner was declared nil without granting even one more opportunity. He is the main accused. Therefore, complainant's cross examination by the petitioner would be essential in order to arrive at a just and proper decision of the case. CRM No. M 17028 of 2010 5 On the other hand, it is also an admitted position that the respondent/complainant resides in England and has to come from England for the cross examination. At the stage, learned counsel for the petitioner, on instructions from his client, stated that the petitioner is ready and willing to pay Rs.50,000/- towards the Air Fare of economy class, to be incurred by the complainant. In view of the aforesaid discussion, the present petition is allowed and the impugned order dated 05.03.2010 passed by the JMIC, Ludhiana, dismissing the application for recalling of the complainant is hereby set aside. The petitioner shall be allowed two effective opportunities to cross examine the complainant. However, two effective opportunities will be spread over in a span of one week only. Efforts shall be made to cross examine the complainant on the first date itself. The trial Court shall proceed to make necessary order for recalling of the respondent/complainant for making himself available for the cross examination. The respondent/complainant shall make himself available for the cross examination on the date fixed by the trial Court. The present petition is allowed subject to the deposit of Rs.50,000/- before the trial Court towards the air fare charges (economy class) to be paid to the complainant. The petitioner shall pay the balance amount towards the actual charges of the air fare (economy class), if it is more than Rs.50,000/-. Allowed in the above terms. (Nirmaljit Kaur) Judge 15.03.2011 mohan