IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Criminal Miscellaneous No. M-19202 of 2008 (O & M) Date of Decision: August 04, 2011 M/s Rohan Enterprises .....PETITIONER(S) VERSUS M/s Ameek Computers Private Limited & another .....RESPONDENT(S) . . . CORAM: HON'BLE MR. JUSTICE AJAI LAMBA PRESENT: - Mr. Anuj Raura, Advocate, for the petitioner. Mr. Sartej Singh Narula, Advocate, for the respondents. . . . AJAI LAMBA, J (Oral) 1. This petition filed under Section 482 Cr.P.C., challenges order dated 26.5.2008 passed by the Judicial Magistrate Ist Class, Chandigarh, placed on record as Annexure P-9, vide which application filed by the complainant-petitioner has been dismissed. Resuntantly, the respondent-accused has been allowed to bring evidence in defence. 2. Gist of the controversy is that in a complaint Crl. Misc. No. M-19202 of 2008 [2] case, the complainant was examined and cross-examined. Certain pages of ledger were exhibited as Exh.C6. At a subsequent stage, the respondent-accused filed an application under Section 311 Cr.P.C. to re-examine the complainant. The said application was dismissed by the Magistrate vide order dated 22.11.2006 (Annexure P-3). Revision petition directed against the same was also dismissed vide order dated 15.2.2007 (Annexure P-4). Criminal Miscellaneous petition carried to this Court was also dismissed vide order dated 17.1.2008 (Annexure P-5). 3. After recording of statement under Section 313 Cr.P.C., the defence has exercised its right to summon the complainant alongwith record in defence evidence. 4. The only objection taken on behalf of the petitioner-complainant is that because earlier the application under Section 311 Cr.P.C. to re-examine the complainant had been dismissed, at this juncture, respondent-accused cannot be allowed to examine the complainant as their witness. 5. I have considered the contention of learned counsel. 6. The issue has been rightly dealt with by the Magistrate in impugned order dated 26.5.2008, relevant portion of which reads as under:- “.....The point that arises for consideration is whether the accused can be precluded on the basis of aforementioned order to bring any witness in his defence. In this regard I Crl. Misc. No. M-19202 of 2008 [3] am of this opinion that in the aforementioned orders there has been no preclusion of the accused in examining any witness in his defence. To produce any witness as well as any document in support of his defence is a very valuable right conferred on an accused in the Criminal Procedure Code especially when that evidence is material to throw light on the controversy in hand and is also aimed at the topper adjudication of the controversy in hand. Hence in the facts and circumstances of the instant case, there is no doubt in my mind that while disposing of an application under Section 311 of Cr.P.C. this court has just decided the question of the right of the accused regarding the recalling of the witness on the point of effective cross examination vide order dated 22.11.2006 and at no point of time the valuable right of the accused was taken away to bring any evidence in his defence nor there is any such order shown to the satisfaction of the court whereby the such right of the accused has been specifically taken away. So, I am not impressed with the argument of the learned counsel for the complainant that accused cannot summon the witness from the complainant company which has in its custody the relevant record which the accused alleges to be material for the proper adjudication of the controversy in hand, moreover, the accused has already been granted permission to summon the necessary witness, as such this court has no power to recall its own order, even otherwise the examining of the witness as per the prayer of the accused is also essential for the effective and proper adjudication of the controversy in hands, hence in the facts and circumstances of the case this application is devoid of merits and same is hereby dismissed. But no order as to costs.” 7. Learned counsel for the petitioner has not been able to deny the proposition that right of the defence to bring evidence is valuable and cannot be denied. The only objection taken is, as noticed above. 8. In 1997 Criminal Law Journal 2020, ‘Mrs. Madhu Bansal vs. Shri Dinesh Kumar’, the following has been held:- “Learned Judicial Magistrate has passed the impugned order, annexure P/8, considering Section 254(1) Cr.P.C. (for short ‘the Code’). The provision of Section 254 of the Code does not debar an accused from examining a witness who has already been examined by the complainant/prosecution as his witness. On the contrary, if Crl. Misc. No. M-19202 of 2008 [4] the complainant’s or prosecution witness is again examined by the accused as a defence witness, the prosecution/complainant gets a right to cross-examine the witness. Therefore, if the accused examines such a witness, it will be at his own peril and the complainant cannot be prejudiced by the said act of the accused” 9. Considering the facts and circumstances of the case, no fault can be found with the impugned order passed by the Trial Magistrate. In such circumstances, the petition is devoid of merit and is dismissed. (AJAI LAMBA) August 04, 2011 JUDGE avin 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest?