CRM No.M-16147 of 2010 (O & M) -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH ***** CRM No.M-16147 of 2010 (O & M) Date of decision : 8.8.2011 Madan Lal alias Chiri ........Petitioner Vs. State of Punjab ......Respondent CORAM : HON'BLE MR. JUSTICE AJAI LAMBA Present:- Mr.Jatinderjit Kaur, Advocate, for the petitioner Ms.Rajni Gupta, Addl. AG, Punjab --- AJAI LAMBA, J (Oral) The order impugned in this petition is dated 15.2.2010 and it reads as under :- “Present: APP for the State Both the accused on bail. PW 1 Charanjit Singh and PW 2 Kashmir Singh are present. Perusal of the file shows that both these witnesses remained present for the last several dates but were not cross examined by the defence counsel. Their examination in chief were recorded on 22.11.07 and 29.2.08 respectively. Sh.M.K.Sareen, Defence counsel has today pleaded no instructions on behalf of both the accused. The learned APP for the state has stated at bar that accused have taken so many adjournment only for the purpose of cross-examination of both these witnesses. Hence cross examination of both these PWs is declared as Nil. For remaining prosecution evidence subject to last opportunity. Case is adjourned to 16.4.10. Sd/-JMIC/15.2.10” Learned counsel appearing for the petitioner-accused contends that CRM No.M-16147 of 2010 (O & M) -2- the order has been based on the premise that both the witnesses remained present for the last several dates but were not cross-examined by the defence counsel. Examination-in-chief of these witnesses was recorded on 22.11.2007 and 29.2.2008. Sh.N.K.Sareen, Advocate had pleaded no instructions on behalf of the accused. It has been argued that cross examination of the witnesses could not have been declared Nil for the reason that on the earlier dates prosecution witnesses had not come present. On going through the zimni orders placed on record, I find that prosecution witnesses were not present on 28.9.2006, 13.11.2006, 24.1.2007, 8.3.2007, 26.4.2007, 30.6.2007, 18.7.2007, 20.8.2007, 19.9.2007, 18.10.2007 and 18.12.2007. On 24.1.2008 prosecution witness Charanjit Singh was present but he sought an adjournment. On 29.2.2008 prosecution witness Kashmir Singh was present and his examination-in-chief was recorded. His cross- examination was deferred on the request of co-accused. Thereafter, no prosecution witness was present on 31.3.2008, 8.5.2008 and 12.6.2008. On 25.8.2008 Kashmir Singh was present but could not be cross-examined as defence counsel was not available. Likewise, on 17.10.2008 PW Kashmir Singh could not be examined as defence counsel was not present. On 15.12.2008 prosecution witness No.3 ASI Kewal Singh was examined in chief. His cross-examination was deferred on the request of defence counsel. Thereafter, on 22.8.2009, 16.10.2009 and 22.1.2010 no prosecution witness was present. Thereafter, co-accused sought exemption from appearance and therefore, proceedings did not take place. Prosecution witnesses were present on 25.11.2009, however, defence counsel was not available. CRM No.M-16147 of 2010 (O & M) -3- Be that as it may, the position indicated by the impugned order does not appear to be the factual position. Learned counsel appearing for the petitioner has apprised the Court that the accused is a poor person and had to seek a lawyer from Legal Aid to pursue his case on account of deficiency in services rendered by the earlier counsel. It has also been pointed out that the case is still at evidence stage. Considering the sequence of events as noticed above, I am of the considered opinion that manifest injustice would be caused to the accused by not giving him an opportunity to cross-examine prosecution witnesses No.1 and 2. The petitioner engaged a counsel who did not cross-examine the witnesses or did not come present. The petitioner as accused remained present all throughout. On most of the occasions, prosecution witnesses were not present. To some extent protracted trial is also to be blamed because the proceedings have been going on since 2006. So as to avoid prejudice to the rights of the petitioner caused on account of circumstances noticed above, order dated 15.2.2010 is hereby quashed. The trial Court is directed to give two opportunities to the petitioner-accused to cross examine prosecution witnesses No.1 & 2 i.e. Charanjit Singh and Kashmir Singh. This petition is disposed of. Copy of the order be given to learned counsel for the petitioner under the signatures of the Bench Secretary. (AJAI LAMBA) JUDGE 8.8.2011 akm