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2019 Supreme(Raj) 549
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR
Kanwaljit Singh Ahluwalia, J.
Randhir Singh S/o Late Bhura Ram and Ors. – Petitioners
Versus
State of Rajasthan, Through PP. – Respondent
S.B. Criminal Miscellaneous (Petition) No. 1703 of 2019
Decided On : 15-04-2019
For the Petitioner: Mr. Arun Singh Shekhawat
For the Respondent: Mr. S.S. Mahla
Headnote:
Criminal Procedure Code, 1973 – Section 311,482 – Quashment of proceedings – Petitioner – Submitted that if examination-in-chief of PW.7 taken into consideration without cross-examination, petitioner will be left defenseless and shall have no remedy – Held, Petitioner granted one opportunity to cross-examine PW.7 subject to payment of cost – Cost shall be disbursed to PW.7. Who has been made to suffer. It is ordered that upon deposit of cost by petitioner within ten days from date of receipt of certified copy of this order – Trial court, as per its convenience and calendar, shall fix one date for cross-examination of PW.7. On that day, counsel for petitioner shall conclude cross-examination – Due to paucity of time cross-examination of PW.7 is not concluded – Petition disposed of (Para 6 &7)
Facts of the case:
Petition filed under Section 482 Cr.P.C. praying impugned order passed by Additional Chief Judicial Magistrate, whereby application filed by petitioners under Section 311 Cr.P.C. was dismissed, be set aside – Submitted that if examination-in-chief of PW.7 taken into consideration without cross-examination, petitioner will be left defenseless and shall have no remedy
Findings of the court:
Petitioner granted one opportunity to cross-examine PW.7 subject to payment of cost – Cost shall be disbursed to PW.7. Who has been made to suffer. It is ordered that upon deposit of cost by petitioner within ten days from date of receipt of certified copy of this order – Trial court, as per its convenience and calendar, shall fix one date for cross-examination of PW.7. On that day, counsel for petitioner shall conclude cross-examination – Due to paucity of time cross-examination of PW.7 is not concluded
Result: Petition disposed of
ORDER :
1. Present petition has been filed under Section 482 Cr.P.C. praying that the impugned order dated 5.2.2019 passed by the Additional Chief Judicial Magistrate, Jhunjhunu, whereby the application filed by the petitioners under Section 311 Cr.P.C. was dismissed, be set aside.
2. Briefly stated, the petitioners are facing trial in a Criminal Case pending in the court of Additional Chief Judicial Magistrate, Jhunjhunu. On 11.10.2018 examination-in-chief of PW.7 Dr. Bhagchand Baghal was recorded and the matter was kept for cross-examination of PW.7. But cross-examination of PW.7 Dr. Bhagchand Baghal was not carried. Therefore, on 11.10.2018 the cross-examination of PW.7 was closed and the case was fixed for prosecution evidence. The application filed by the petitioners under Section 311 Cr.P.C. was also dismissed vide order dated 5.2.2019.
3. The court below noted that before closing cross-examination of the prosecution witness, i.e. PW.7, various opportunities were granted to the petitioners. But cross-examination was not carried. Therefore, on 11.10.2018, the cross-examination of PW.7 was closed.
4. This is a case where the prosecution witness has been harassed. The accused misused the magnanimity of the court. PW.7 has been appearing on each and every date, but on one pretext or the other, cross-examination was not carried. The accused simply wanted to delay the proceedings.
5. At this juncture, learned counsel for the petitioners has submitted that for the act of the counsel, petitioners cannot be made to suffer. It is submitted that if examination-in-chief of PW.7 is taken into consideration without cross-examination, the petitioner will be left defenceless and shall have no remedy.
6. Taking into account the fair play and balance of equities, the petitioner is granted one opportunity to cross-examine PW.7 Dr. Bhagchand Baghal subject to payment of cost of Rs.5,000/-. The cost shall be disbursed to PW.7. Dr. Bhagchand Baghal who has been made to suffer. It is ordered that upon deposit of cost by the petitioner within ten days from the date of receipt of certified copy of this order, the trial court, as per its convenience and calendar, shall fix one date for cross-examination of PW.7 Dr. Bhagchand Baghal. On that day, counsel for the accused-petitioner shall conclude the cross-examination. However, if due to paucity of time cross-examination of the PW.7 is not concluded, the trial court shall fix the next day as date for the same.
7. In view of above, the present petition stands disposed of.
