IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE NINETH DAY OF JULY TWO THOUSAND AND TEN PRESENT THE HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL PETITION No.6443 OF 2010 Between: N. Jagan Mohan … PETITIONER And The State of Andhra Pradesh, represented by its Public Prosecutor … RESPONDENT This Court made the following: THE HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL PETITION No.6443 OF 2010 ORDER: This Criminal Petition, under Section 482 Cr.P.C., is filed by the petitioner - accused with a prayer to quash the order, dated 19.03.2010, in Crl.MP.No.5933 of 2009 in C.C.No.24 of 2008, on the file of XIV Additional Chief Metropolitan Magistrate, Hyderabad, whereunder and whereby, the petition filed to eschew the evidence of PW.1 as he has not tendered for cross-examination, was dismissed. 2. The grievance of the petitioner herein is that he is facing a case before the concerned Court. The prosecution examined PW.1 on 26.11.2008. PW.1 deposed in chief part and subsequently even prior to completion of the chief-examination has not turned to the Court till 04.12.2009. Thereafter, the present petitioner – accused filed the present petition before the trial Court to eschew the evidence of PW.1 under Section 137 of the Indian Evidence Act, 1872. The learned Magistrate by order dated 19.03.2010 dismissed the application observing as follows: “4. The counsel for accused relied upon case law (1) Sanatan Daw Vs. Dasarathi Tah, wherein it is held that “Evidence unless complete by cross examination cannot be proved”. Another case law Mahalingappa Vs. Kariyanna wherein it is held that “In case a witness, after examination in chief, failed to make himself available for cross-examination by the opposite party, may be his evidence in chief can be eschewed since there was no opportunity to opposite party to test the veracity of the evidence in chief”. 5. In the present case, PW.1 did not turn up of continuation of examination in chief. So examination in chief of PW.1 is not completed. So the question of PW.1 did not turn up for cross-examination does not arise. For the above said circumstance the examination in chief part of PW.1 cannot be eschewed. Hence this Court has closed the evidence of PW.1, in order to give opportunity to prosecution to examine PW.1, if he is available by the aid of U/Sec.311 Cr.P.C. In view of the case laws submitted by counsel for accused, when the witness did not turn up for cross-examination, his evidence may be eschewed. So the judgments are not applicable to this case. 6. More over the prosecution can examine any witness as its chance, there is no rule, after examining PW.1, other witnesses are to be examined. Therefore PW.1 will be examined before examination of Investigation Officer, if he is available. There are no merits in this petition.” 3. This Court perused the record and also the order passed by the learned Magistrate. The learned Magistrate passed the order stating that the citation cited by the petitioner herein not squarely applicable to the case and there is a possibility for the prosecution to examine the said witness by filing an application under Section 311 Cr.P.C., even prior to completion of the trial. 4. The learned counsel for the petitioner after arguing for some time, this Court expressed that the examination of PW.1 in chief, which is recorded partly, cannot be used as evidence at the time of passing judgment, if he is not examined further by the trail Court. 5. The learned counsel for the petitioner submitted that the said contention may be observed in the order, so that the learned Magistrate may not use the evidence of PW.1 recorded by the learned Magistrate on 26.11.2008, at the time of disposal of the case. Hence, it is made clear that the said PW.1’s evidence recorded on 26.11.2008 cannot be considered to be an evidence adduced, unless otherwise, he is examined further and subject himself to cross-examination. If the said witness not subject himself for any further chief-examination and cross-examination, the learned Magistrate is directed not to consider the evidence adduced by him on 26.11.2008. 6. With the above observation, the Criminal Petition is disposed of. _________________________ JUSTICE RAJA ELANGO July 09, 2010 MD THE HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL PETITION No.6443 OF 2010 July 09, 2010