Criminal Misc. No. M-3426 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No. M-3426 of 2010 Date of Decision: 26.04.2010 Harbans Lal son of Kheta Ram, resident of Talwandi Sabo, District Bathinda. ... Petitioner Versus The State of Punjab. ...Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Naveen Sharma, Advocate, for the petitioner. Mr. T.S. Salana, Deputy Advocate General, Punjab, for the respondent - State. SHAM SUNDER, J. This petition under Section 482 Cr.P.C., read with Section 311 Cr.P.C., for setting aside the order dated 08.12.09, and, for recalling the prosecution witness namely Bikkar Singh alongwith the relevant record, has been filed by the petitioner. 2. I have heard the Counsel for the parties, and, have gone through the documents, on record, carefully. 3. The Counsel for the petitioner, submitted that, on the date, the further cross-examination of Bikkar Singh, was closed by the Court, the Counsel for the petitioner, was not well. He further submitted that, the Court below, was wrong, in coming to the Criminal Misc. No. M-3426 of 2010 2 conclusion, that there was no indication, that the Counsel for the petitioner was not well. He further submitted that, even the documents, were not produced, by Bikkar Singh, PW1, and, therefore, earlier the cross-examination, could not be conducted, by the Counsel for the petitioner. He further submitted that, it was only, during the course of cross-examination, that the veracity of the witness, could be effectively assailed. He further submitted that the order impugned, being illegal, be set aside. 4. On the other hand, the Counsel for the respondent, submitted that, sufficient opportunity, was granted, to the petitioner, to cross-examination Bikkar Singh, but, he did not do so. He further submitted that, under these circumstances, there was no alternative left with the Court concerned, than to close the further cross- examination of Bikkar Singh. He further submitted that the order impugned, being legal and valid, is liable to be upheld. 5. After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in my considered opinion, the petition, is liable to be accepted, for the reasons, to be recorded, hereinafter. The perusal of the order impugned, shows that, some documents, were summoned, from Bikkar Singh, PW1, which were essential, for the cross-examination of this witness. It was, under these circumstances that, on the earlier dates, he could not be cross-examined. It is further evident, from the order impugned that, on 08.12.09, no doubt, Bikkar Singh, PW1, was present with record, for cross-examination, when, in the first instance, the Counsel for the Criminal Misc. No. M-3426 of 2010 3 petitioner, was not available and was stated to be busy, before some other Court. At about 3.00 PM, when the Counsel for the petitioner appeared, he stated, that he was unwell, and, therefore, could not cross-examine the witness. It is evident, from the record, that the witness, had to be sent back un cross-examined, on account of the one or the other reason. It could not be said, that the petitioner, was not at fault. However, on the date i.e. 08.12.09, when the cross- examination of Bikkar Singh, PW1, was closed, there appeared, to be some justifiable cause for adjournment, on behalf of the Counsel for the petitioner. It is only, during the course of cross-examination, that the veracity of the witness, can be challenged effectively. It is settled principle of law, that every lis, should be decided, on merits, than by default. It is a fit case, in which, one opportunity, should be granted, to the petitioner, to further cross-examine the witness, as the interest of justice so demands. The order impugned, is, thus, liable to be set aside. 6. For the reasons recorded above, Criminal Misc. No. M- 3426 of 2010, is accepted. The order dated 08.12.09, is set aside, subject to payment of costs of Rs. 5,000/-, by the petitioner, which shall be deposited with the Sub Divisional Legal Services Authority. The petitioner, is granted only one date, which shall be fixed, by the Court below, for the purpose of further cross-examination of Bikkar Singh, PW1. On that date, Bikkar Singh, PW1, shall be summoned with the record, and, if the Counsel for the petitioner, fails to cross- examine Bikkar Singh, PW1, for whatever the reason, may be, then Criminal Misc. No. M-3426 of 2010 4 the Court below, shall be at liberty to refuse an adjournment, and proceed further, in accordance with the provisions of law. Payment of costs shall be a condition precedent. 7. The parties, are directed, to appear, in the trial Court, on 20.05.2010, at 10.00 AM sharp. 26.02.2010 (SHAM SUNDER) Amodh JUDGE