CRM No. M-20694 of 2008 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH CRM No. M-20694 of 2008 (O&M) Date of Decision: 3rd November, 2011 Jaswant Rai Jain ……… Petitioner Versus Punjab and Haryana High Court, Chandigarh ………… Respondent ***** CORAM: HON’BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present : Mr. A.S. Ratania, Advocate for Mr. J.S. Bedi, Advocate for the petitioner. Mr. Pawan Mahajan, Advocate for the respondent. **** AUGUSTINE GEORGE MASIH, J. (Oral) Challenge in this petition is to the order dated 2.5.2006 passed by the Chief Judicial Magistrate, Chandigarh (Annexure P-1) and the order dated 17.7.2008 passed by the Addl. Sessions Judge, Chandigarh (Annexure P-2). The order dated 2.5.2006 was passed by the Chief Judicial Magistrate, Chandigarh dismissing the application for adjournment moved by the petitioner, on the ground that the Hand Writing Expert Ms. Jassi Anand (DW-3), who was to be cross-examined, could not come present because of her illness. Learned Court had given various dates on which case was adjourned for the defence evidence but the defence had failed to produce the evidence. Revision preferred by the petitioner against the said order was also dismissed by the learned Addl. Sessions Judge, Chandigarh vide order dated 17.7.2008 on the same grounds that the defence has not been able to produce its evidence despite various opportunities granted including the last opportunity. It is at this stage the present petition has been filed under Section 482 Cr.P.C. CRM No. M-20694 of 2008 2 Counsel for the petitioner contends that, no doubt, there has been some lapse on the part of the petitioner as he was unable to produce his expert witness for cross-examination in Court but on various dates after the examination-in-chief of his expert witness had been concluded, the prosecution failed to appoint an expert to cross-examine this expert, who was produced by the petitioner Ms. Jassi Anand (DW-3). It is the contention of the counsel for the petitioner that if this opportunity is not granted to the petitioner, defence of the petitioner would be prejudiced and he would be deprived of his right to defend himself. He contends that heavy cost be imposed by granting him one opportunity to produce the said evidence. On the other hand, counsel for the respondent submits that as is apparent from the impugned order, various opportunities were granted to the petitioner for concluding his evidence but when the same was not done despite last opportunity granted, the Court had no option except to close the evidence by rejecting the prayer for adjournment and, therefore, no interference in the case is called for. I have heard counsel for the parties and have gone through the records of the case. No doubt, various opportunities have been availed of by the petitioner, who is an accused in the case and has failed to produce the expert on whose evidence the petitioner is relying upon but the interest of justice would require one opportunity to be given to the petitioner to produce Ms. Jassi Anand (DW3) for cross-examination. In case the cross-examination of this witness is not permitted her evidence cannot be looked into, which would deprive the petitioner of his right of fair trial. Looking at the conduct of the petitioner which has been most lethargic in approach, still interest of justice would require one opportunity be granted to the petitioner to produce Ms. Jassi Anand (DW-3) for her cross- examination subject to payment of costs. Counsel for the respondent on instructions has informed the Court that on 15.12.2011 expert of the complainant would be available in Court for cross- CRM No. M-20694 of 2008 3 examining Ms. Jassi Anand (DW-3), which date is acceptable to the counsel for the petitioner, who undertakes to produce her in Court on this date. In view of the above, the impugned order dated 2.5.2006 passed by the Chief Judicial Magistrate, Chandigarh (Annexure P-1) and the order dated 17.7.2008 passed by the Addl. Sessions Judge, Chandigarh (Annexure P-2) are hereby suspended and shall stand set aside subject to payment of Rs. 10,000/- as costs to be deposited with the Legal Services Authority, Chandigarh and complying with the undertaking given by the counsel for the petitioner. On production of the receipt, the trial Court shall grant one opportunity to the petitioner to produce Ms. Jassi Anand (DW-3) before the trial Court on 15.12.2011 for cross-examining her, on which date, as undertaken by the counsel for the complainant, their expert would be available for cross-examining her. In case the petitioner fails to deposit costs or produce Ms. Jassi Anand on 15.12.2011 in Court for cross-examination, order dated 2.5.2006 (Annexure P-1) and order dated 17.7.2008 (Annexure P-2) impugned herein shall stand revived. Trial Court is directed to list the case for hearing on 15.12.2011 for the reasons stated above. Petition stands disposed of in above terms. 3rd November, 2011 (AUGUSTINE GEORGE MASIH) 'sp' JUDGE