IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Misc. No. M-2530 of 2009 (O/M). Date of Decision : August 24, 2009. Gian Singh son of Hazoor Singh resident of Village Rajia, District Barnala. ...... Petitioner . Versus. State of Punjab, and another. ..... Respondents . CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH. Present:- Mr. G.S. Toor, Advocate, for the petitioner . Mr. Aman Deep Singh Rai, A.A.G. Punjab, for the respondent No.1-State. Mr. Suresh Goyal, Advocate, for the respondent No. 2. AUGUSTINE GEORGE MASIH, J. (ORAL). The present petition has been filed by the petitioner, challenging the order dated 08.10.2008, passed by learned Judicial Magistrate 1st Class, Barnala, vide which an application moved under Section 311 Cr.P.C. by the prosecution for examination of complainant Gian Singh and his brother Harbhajan Singh has been rejected and thereafter, the revision preferred before the Court of learned Additional Sessions Judge, Barnala, also stands dismissed, vide order dated 12.01.2009. Counsel for the petitioner contends that the petitioner and his brother are the material witnesses, as they are eye-witnesses to the occurrence wherein daughter of the petitioner was injured in the occurrence which respondent No. 2-accused had inflicted injuries on her. He submits that due to some reasons, they both could not appear before the Trial Court, because of which the prosecution evidence was closed. He further submits Criminal Misc. No. M-2530 of 2009 . that due to lapse on the part of prosecution the respondent-accused, who had committed offence, can not be allowed to take the benefit. He further submits that the non-appearance of the petitioner and his brother before the Court was neither intentional nor deliberate and, therefore, the petitioner and his brother should be allowed to make statements before the Court and their evidence should be recorded. The dismissal of application under Section 311 Cr.P.C. by the Trial Court and thereafter, the revision by the Revisional Court, cannot be sustained. He further submits that this Court has power under Section 482 Cr.P.C. to grant relief, which has been prayed for by the petitioner. On the other hand, counsel for the respondent No.2-accused submits that various opportunities were granted to the prosecution to conclude the evidence and even bailable warrants were issued and served upon the petitioner and his brother namely Harbhajan Singh, but they chose not to appear before the trial Court. He submits that their absence before the Court was intentional. No reason whatsoever has been given by the petitioner and his brother for non-appearance before the Court, when they were summoned as witnesses. He, therefore, contends that the present petition is an abuse of process of Court, which should not be allowed as the respondent No.-2-accused has a right of fair and expeditious trial of an offence with which he has been charged. It is further his contention that the order passed by the Trial Court thereby closing the evidence of the prosecution, was not challenged by the petitioner and his brother in any forum. I have heard counsel for the parties and have gone through the records of the case. -2- Criminal Misc. No. M-2530 of 2009 . Perusal of the order passed by the Courts below clearly indicate the laxity, which the petitioner and his brother had been adopting before the Trial Court. It has come on record that the petitioner Gian Singh and his brother Harbhajan Singh who were cited as prosecution witnesses were served for the first time to appear before the Trial Court on 13.01.2006. On the said date, when they did not appear, they were ordered to be served through bailable warrants. Despite bailable warrants having been served upon them for 02.06.2006, they chose not to appear before the Court. The case was thereafter, taken up for prosecution evidence on 02.11.2006, 24.01.2007, 08.06.2007, 19.12.2007, 03.04.2008 and 25.05.2008, but on none of these dates, P.Ws. Gian Singh and his brother Harbhajan Singh came present before the Court. The Court was left with no option but to close the prosecution evidence, vide order dated 08.10.2008. This order has not been challenged by the petitioner and by the State. The order has attained finality To over come this difficulty, an application under Section 311 Cr.P.C. for recording evidence of Gian Singh and his brother Harbhajan Singh, was moved by the petitioner. The said application is dated 03.06.2008. A perusal of the said application does not indicate any explanation whatsoever as to why the petitioner and his brother failed to come present before the Court. The only reason for non-appearance of the petitioner and his brother before the Court for giving evidence is stated to be due to some urgent work. No date is mentioned as to when some urgent work was there, due to which they could not appear. All this goes to show that the petitioner and his other prosecution witnesses had not taken reasonable care and cautions despite of he being the complainant and fixing -3- Criminal Misc. No. M-2530 of 2009 . of various dates by the Trial Court for production of the prosecution evidence, they chose not to appear inspite of bailable warrants having been duly served upon them. This apart, the conduct of the petitioner and his brother indicate that they wanted to prolong the trial against the respondent No. 2-accused intentionally as till the date when the evidence was closed, the petitioner and his brother did not appear, but on the very next date, when the case was fixed before the Trial Court, they moved an application under Section 311 Cr.P.C. for recording of evidence of petitioner Gian Singh and his brother Harbhajan Singh. There is no doubt that the interest of justice requires that the prosecution should be given due opportunities to produce its evidence, so that any accused may not go scot free and un-punished because of non-examination of the witnesses, but on the other hand, the accused has also a right of fair and expeditious trial. Therefore, the rights are to be balanced between the prosecution and the accused. The dates, which have been mentioned above, on which the case was fixed for evidence of the petitioner Gian Singh and his brother Harbhajan Singh, clearly indicate that more than reasonable opportunities were granted to the prosecution to produce the evidence, despite that the petitioner and his brother chose not to appear before the Court, despite being duly served by ordinary process and bailable warrants therefore, the orders passed by the Trial Court and Revisional Court, are fully justified and do not call for any interference by this Court. In view of the above, the present petition stands dismissed. (AUGUSTINE GEORGE MASIH) JUDGE August 24, 2009. sjks. -4-