The right to cross-examine is fundamental to a fair trial, and despite previous adjournments, one last opportunity should be granted to the accused to defend himself, subject to costs.

ORDER :

Farjand Ali, J.

These instant Misc. Petitions under Sections 482 Cr.PC. have been filed order dated 04.09.2019 passed by the learned Special Judicial Magistrate, NI Act Cases No.2, Bhilwara in Criminal Regular Case Nos.398/2012, 854/2012 and 1485/2012 whereby the prayer for recalling the complainant for cross examination has been rejected as well as against the order dated 08.02.2023 passed by the learned Sessions Judge, Bhilwara in Criminal Revision Nos.32/2023, 33/2023 and 34/2023 whereby the revision filed by the petitioner has been dismissed.

2. The said orders are under challenge before this Court by way of filing these Misc. Petitions. Since subject matter of all the three cases as well as the parties and the question of law involved in the matter is the same, therefore, by the consent of the parties, all the matters are being heard and decided together by this common order at the admission stage itself.

3. Heard learned counsel for the petitioner as well as learned Public Prosecutor and Mr. Usman Ghani, learned counsel who puts in appearance for the respondent-complainant. Perused the material available on record.

4. Bereft of elaborate details briefly stated the facts necessary for disposal of these petitions are that the respondent-complainant had submitted a criminal complaint before the learned trial Court in the year 2012 for offence under Section 138 of the NI Act in which after taking cognizance of the offence, process was issued and the petitioner accused appeared before the Court concerned. On 29.06.2016, the complainant Arvind submitted his affidavit in the form of examination in chief and whereafter, on several occasions, the matter got adjourned on the prayer made by the accused-petitioner even on two occasions costs were imposed upon him but of no avail. On 22.08.2016, when the petitioner was supposed to cross examine the witness, he instead of doing cross examination, deemed it suitable to get his bail bonds forfeited. Subsequently, he was bailed out upon his surrender. Again on 10.04.2018, he repeated the same course of action. Whereafter, again on several occasions opportunities were afforded to him but for one or the other pretext, the petitioner sought adjournment. Lastly, the learned trial Court closed the right of the accused to cross examine the complainant and posted the matter for explanation under Section 313 Cr.P.C. It is noticeable that the said order was never challenged and again the petitioner moved an application for providing him one opportunity to cross examine the witness which came to be dismissed vide the order impugned dated 04.09.2019.

5. The said order was assailed by the petitioner by way of filing separate Criminal Revision before the learned Sessions Judge. The learned Judge have minutely examined the legality, correctness and propriety of the orders and dismissed the same holding no error in the said orders.

6. After going through the entire material, I am of the view that neither the learned Magistrate nor the learned Sessions Judge has committed any error in rejecting the prayer of the petitioner. Yet I am of this view that for the obnoxious behaviour of the petitioner, he can be penalised and costs can be imposed upon him but on account of his attitude, he cannot be deprived of his right to defend himself. Since the right to cross examine is akin to right to defend. Although ample opportunities have been granted to him and the matter is pending since year 2012 still in the interest of justice, one last opportunity is granted to the petitioner by penalising him to deposit a cost.

7. Accordingly, the revision petition is allowed. The order dated 04.09.2019 passed by the learned Special Judicial Magistrate, NI Act Cases No.2, Bhilwara in Criminal Regular Case Nos.398/2012, 854/2012 and 1485/2012 and the order dated 08.02.2023 passed by the learned Sessions Judge, Bhilwara in Criminal Revision Nos.32/2023, 33/2023 and 34/2023 are hereby quashed and set aside for the reasons menti