Crl. Misc. No. M-27913 of 2010 (O&M) -1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. Misc. No. M-27913 of 2010 (O&M) Date of Decision: 17.08.2011. Saroop Singh ........Petitioner Vs. State of Punjab ......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. Naresh Kaushik, Advocate for the petitioner. Mr. G.S.Brar, Asstt. A.G. Punjab. ..... SABINA, J. Petitioner has filed this petition under Section 482 of the Code of Criminal Procedure, 1973 ('Cr.P.C.' for short) challenging the order dated 01.9.2010 (Annexure P-1) whereby the application, moved by the petitioner seeking re-summoning of PW-5 Hardeep Singh and PW-7 Jaspal Singh for cross examination, was dismissed. Learned counsel for the petitioner has submitted that the case was listed before the trial court on 07.7.2010 for prosecution evidence. On the said date, counsel for the accused was not available as he had gone abroad. Hence, the witnesses present on the said date could not be cross examined by the accused. Learned state counsel, on the other hand, has submitted that on 07.7.2010, examination in chief of Crl. Misc. No. M-27913 of 2010 (O&M) -2 - PW-5 Hardeep Singh and PW-7 Jaspal Singh were recorded and opportunity was given to the accused as well as their counsel to cross examine the said witnesses. However, the said witnesses were not cross examined despite opportunity and consequently, their cross examination were treated as nil. After hearing learned counsel for the parties, I am of the opinion that the instant petition deserves to be allowed. The petitioner has taken specific plea that on 07.7.2010, the witnesses PW-5 Hardeep Singh and PW-7 Jaspal Singh could not be cross examined due to non availability of the defence counsel as he had gone abroad. An application was moved to defer the cross examination of the said witnesses due to non availability of the defence counsel. However, no order was passed on the said application and the cross examination of PW-5 Hardeep Singh and PW-7 Jaspal Singh were treated as nil. In the present case, the petitioner is facing trial for an offence under Section 406/420 of the Indian Penal Code. In case, the petitioner is allowed an opportunity to cross examine PW-5 Hardeep Singh and PW-7 Jaspal Singh, the trial would be disposed of on merits. In case the petitioner is denied the opportunity to cross examine the witnesses in question, serious prejudice would be caused to the petitioner. The whole endeavour of the courts is to impart justice to the parties. Justice is a virtue which transcends all barriers. Neither the rule of procedure nor technicalities of law can stand in its way. Even law bends before justice. Duty to do justice is paramount. In the facts and circumstances of the present case, it would be just and expedient to allow one opportunity to the petitioner to enable Crl. Misc. No. M-27913 of 2010 (O&M) -3 - him to cross examine PW-5 Hardeep Singh and PW-7 Jaspal Singh. Accordingly, this petition is allowed. The impugned order dated 01.9.2010 (Annexure P-1) is set aside. Consequently, the application under Section 311 Cr.P.C. is allowed. The witnesses PW-5 Hardeep Singh and PW-7 Jaspal Singh be recalled to enable the petitioner to cross examine the said witnesses. However, it is clarified that only one opportunity would be granted to the petitioner to enable him to cross examine PW-5 Hardeep Singh and PW-7 Jaspal Singh. (SABINA) JUDGE August 17, 2011 Gurpreet