The right to cross-examine a complainant is essential for a fair trial, and its denial violates principles of natural justice and Article 21 of the Constitution.

Judgment

Mr. Kuldeep Tiwari, J.

Through the instant petition, as instituted under Section 482 of the Cr.P.C., the petitioner assails the order dated 15.03.2019 (Annexure P-1), whereby, the learned Magistrate concerned closed the right of the petitioner to cross-examine the complainant, as provided under Section 145(2) of the Negotiable Instruments Act, 1881 (hereinafter referred to as the ‘N.I. Act’).

2. In addition, the petitioner has also assailed the order dated 05.10.2019 (Annexure P-2), whereby, the learned Magistrate concerned dismissed the application of the petitioner for recalling of witness under Section 311 of the Cr.P.C.

3. A perusal of the impugned order dated 15.03.2019 reveals that despite availment of five effective opportunities by the defence, the petitioner did not cross-examine the complainant, which led the learned Magistrate concerned to form an inference that the petitioner is unnecessarily delaying the trial and consequently, constrained him to draw the order (supra).

4. The order (supra) caused grievance to the petitioner and led her to institute an application for recalling of witness under Section 311 of the Cr.P.C. The grounds, as urged therein for recalling of the impugned order (supra), were that since the petitioner was facing trail in three other cases, out of which, two cases were pending before the court of Judicial Magistrate Ist Class, Faridabad, while one case was pending in a separate court, therefore, he made an application before the learned Chief Judicial Magistrate concerned for consolidation of all the three cases. Thereupon, the learned Chief Judicial Magistrate concerned, vide order dated 03.06.2019, consolidated all the three cases and transferred them in one court. Moreover, the failure to cross-examine the complainant was attributed to change of counsel by the petitioner. Therefore, it was urged that since on the day, when the right of the petitioner to cross-examine the complainant was closed, the matter was pending for consolidation and transfer of aforesaid cases. Lastly, citing similarity(ies) in the prosecution and defence version in all the aforesaid cases, the petitioner claimed it essential to conduct cross-examination together in all those cases, otherwise, his defence would have become exposed.

5. However, the application (supra) did not find favour from the learned Magistrate concerned, on the ground, that he is not seized with any able jurisdiction or authority to re-call his own order and consequently, he rendered a dismissal order upon the application (supra), on 05.10.2019, for the reason of it being non-maintainable.

6. The dismissal order dated 05.10.2019 aggravated the grievance of the petitioner and compelled him to approach this Court, through the instant motion, whereby, a challenge is laid to the impugned orders (supra).

7. The learned counsel for the petitioner, in his asking for the relief (supra), besides reiterating the submissions, as carried in the application (supra) for recalling of witness, makes submissions that the most important and prime witness, in a trial under Section 138 of the N.I. Act, is none else than the complainant himself, therefore, any denial to the petitioner/accused to cross-examine such a prime witness would tantamount to denying her the right to a fair trial, besides would violate her fundamental right, as envisaged under Article 21 of the Constitution of India. Citing “audi alteram partem” to be the most fundamental principle of natural justice, the learned counsel for the petitioner beseeches one effective opportunity to the petitioner to cross-examine the complainant, which he assures this Court, shall be done on a single date.

8. Before evincing any opinion upon the validity of the impugned orders (supra), or, upon the arguments addressed by the learned counsel for the petitioner, this Court deems it imperative to catch a glimpse of Section 311 of the Cr.P.C.

311. Power to summon material witness, or examine person present: Any Court