1 S. B. CRIMINAL MISC. PETITION NO.1596/2008 MAHAVEER SINGH V. STATE OF RAJASTHAN & ANOTHER. DATE OF ORDER ::: 17/12/2008 HON'BLE MR. JUSTICE C. M. TOTLA Mr. Mahesh Bora, for Petitioner (s). Mr. V. R.Mehta, Public Prosecutor. Mr. Vinod Sharma, for Respondent No.2. Petitioner is facing trial for the offences of Sections 498-A, 304-B & 302, IPC and till today, cross-examination of PW 1 is completed and for others, cross-examination not legal. Brief facts leading to this petition appear to be like this that after examination-in-chief of deceased's brother PW 1, an application under Section 319, Cr.P.C., submitted by the prosecution, requesting that cognizance for the offences be taken against Deen Dayal and Indu Kanwar. Learned Judge, vide order dated 19.5.08, kept the decision on this application under Section 319, Cr.P.C., reserved till examination of three witnesses, i.e. T., S. & Smt. A. On January 13th, cross-examination of PW 1 completed and, thereafter, as per order-sheet of 8.7.08, prosecution and complainant requested for decision of application under Section 319, Cr.P.C. The learned Judge, vide order under-challenge dated 4.8.08 – decided application under Section 319, Cr.P.C., in terms that application under Section 319, Cr.P.C., be kept pending, till examination of mother and father of deceased of whom and for whose deposition shall not be cross-examination. Substantially, the application was decided in terms that the same shall be disposed of after recording examination-in-chief (only). Preferring instant petition under Section 482, Cr.P.C., petitioner, assailing above order, requests that cross-examination of these two 2 witnesses be allowed. Learned counsel for the petitioner argued that (i) application under Section 319, Cr.P.C., was disposed of on 19.5.08 and it was positively decided that the application shall be disposed of after examination of two more witnesses – that is total three witnesses, including PW1. (ii) In order of 19.5.08, there is no specific mention regarding cross-examination. (iii) As application stood decided on 19.5.08 till impugned order no witnesses, in addition to PW 1, was examined, so no occasion arose for impugned order dated 4.8.08. (iv) The impugned order in a way substantially alters order of 19.5.08. (v) When the depositions were to follow, then the learned Judge gravely erred in anticipationly outrightly ordering for non- cross-examination. Submitted that very order dated 4.8.08 be set aside and cross-examination by petitioner accused be allowed. On behalf of the petitioner, also argued that in any case, the petitioner, who is facing trial, has a right of cross-examination. Learned counsel for the respondent-complainant argued that cognizance under Section 319, Cr.P.C., can be taken even after one witness – can also be prior to cross-examination - for cognizance under Section 319, Cr.P.C., cross-examination of witness is not a must – impugned order dated 4.8.08 in no way alters prior order dated 19.5.08 - nothing contrary to order dated 19.5.08 is in impugned order. Lastly argued that even in absence of impugned order, cross-examination by witnesses is not a right (prior to decision of application under Section 319, Cr.P.C.). In support of contention, reliance placed on 2001 SCC (Cri.) 1090, Rakesh & Another v. State of Haryana. Learned Public Prosecutor submitted that provisions of Section 319, Cr.P.C. can be invoked, even prior to cross-examination and cross- examination is not a must. Argued that the learned Judge, after cross- examination of PW 1, has held so of no necessity of cross-examination. Considered arguments and perused the record. Hon'ble the Apex Court in the above case held that prior to adding any person as accused under the provisions of Section 319, Cr.P.C., cross-examination of the 3 witness examined is not a must. The word “evidence” in Section 319, Cr.P.C., is used in a comprehensive broad sense which includes all the material collected in the court of investigation and also, the material and/or evidence which come before the Court. In the instant case, when order dated 19.5.08 was passed, witness examined by that time PW 1 was not cross-examined. Cross-examination of PW 1 reserved on 18.4.08 with a note that as prosecution has submitted an application under Section 319, Cr.P.C., the cross- examination is reserved. Then, after following the order dated May, 08, cross-examination of PW 1 followed on 13.6.08. In order dated 19.5.08, is mentioned that examination of named witnesses – Tejdan, Sanwardan, Shaitandan, Kamadan and Agar Kanwar - is desired. It can hardly be said that the learned Judge on his own could not have invoked provisions of Selection 319, Cr.P.C., at an appropriate stage. Considering all these angles, the order of l4.8.08 cannot be said to be totally unwarranted. But, by the impugned order, cross-examination is specifically restrained –which is to be seen in context of earlier cross- examination of PW 1 after order dated 19.5.08. Simultaneously is the position that at the time of immediate cross-examination of two witnesses PW 2 and/o PW 3 is, the learned Judge could have prior to cross- examination decided the application under Section 319, Cr.P.C.. In the case at hand, further both these witnesses are examined on 23.7.08 and as per order-sheet, examination-in-chief of PW 2 Agar Kanwar and PW 3 Sanwaldan recorded – opportunity sought for cross-examination so cross- examination reserved. Apparently, the cross-examination has not been refused – neither is mentioned that the cross-examination is deferred pending disposal of application under Section 319, Cr.P.C.. Here again then, the learned Judge could have after examination of PW 2 (in normal chronological order) refused instant cross-examination of PW 2 but if instantly ordered so deposition of PW 3 was not likely to follow. Considering all above factual aspects and the legal settled position, Section 319, Cr.P.C.,and other procedural principles and as learned Judge 4 not specifically prevented cross-examination on 23.8.08, the petition is to be disposed of in the terms that the petitioner shall have opportunity of cross-examination of PW 2 Agar Kanwar. Accordingly, the petition is disposed of. The petitioner shall have an opportunity to cross-examine PW 2 Agar Kanwar. Regarding PW 3, it shall be on discretion of the learned Judge who deciding it shall not be prejudiced by order dated 19.5.08 or/and 4.89.08. The application under Section 319, Cr.P.C., shall be decided as per law. The petition stands disposed of as above. (C. M. TOTLA), J. scd