In non-trial hearings, the right to cross-examine witnesses is not guaranteed; such rights are preserved for trial stages, emphasizing the principle of audi alteram partem.

JUDGMENT :

Golmei Gaiphulshillu, J.

1. Heard Mr. S. Abung, learned counsel appearing for the petitioner, Mr. W. Darakishwor, learned senior PCCG appearing for the respondent No. 1 and Mr. M. Gunedhor, learned counsel appearing for the respondents No. 2 to 6.

2. The present petition has been filed under Section 482 of Cr.P.C. read with Section 528 of BNSS with the following prayers:

(i) Kindly admit this Criminal Petition;

(ii) Kindly quash and set aside the order dated 14.08.2024 passed in Misc. Case No. 276 of 2024 of CJM, Imphal West and

(iii) Any order, direction as deemed fit by this Hon’ble Court.

3. The present petitioner is the father of victim, Late Ningthoujam Babysana Chanu, whose right to cross-examine the 2 (two) witnesses on his behalf by counsel called by the Ld. CJM, Imphal West, was denied violating the right under Section 138 of the Indian EVIDENCE ACT which governed the law of examination of witness. Therefore, he filed an application being Misc. Case No. 276 of 2024 before the Ld. CJM, Imphal West (Annexure – A/1). However, vide order dated 02.08.2024, the application was rejected by the Ld. CJM, Imphal West without applying judicial and common sense that the right to call witnesses for examination by Ld. CJM, Imphal West is governed by Section 138 of Indian EVIDENCE ACT . This law is not made to exercise her discretionary power, it is for both sides (Annexure –A/2).The operative portion of the said order is extracted herein below:

“Perused the record. Upon perusal of the record, this Court vide order dated 15-01-2024 and 19-03-2024 had examined 2 (two) experts namely Shri Sujit Kumar Mallick and Dr.S. Joychandra Singh respectively in c/w their Report in the referred CBI case. The same may be for the satisfaction of the Court in c/w the Report submitted by the above named Experts. The prayer for the petitioner/informant in the present application is for recalling the said Court witnesses/Expert for cross-examination. This Court is of the view that in the referred CBI case, the Investigating Authority after thorough investigation had submitted Final Report and not a charge sheet and the case is pending for hearing. The proceeding as such is not trial and there should not be question for examination of any witnesses or cross-examination of the said witnesses. If in case, the informant is not satisfied with the Final Report/expert opinion and could not accept and have objection to the Final Report submitted by the CBI (the investigating authority), the only option is to file a Protest petition and nothing else.

As a result, the prayer of the petitioner/informant for recalling the two court witnesses for cross-examination is hereby rejected.”

4. The learned counsel appearing for the petitioner submits that under Section 138 of the Indian EVIDENCE ACT , the Ld. CJM, Imphal West called the witnesses and examined them, as such there is no difference whether it is Court witnesses or otherwise. The law provides examination-in-chief, cross-examination and re-examination, as such cross examination to the other party is a legal right which cannot be barred by discretionary power of any judicial Magistrate.

Vide judgment and order dated 18.03.2024 passed in Criminal Appeal No.(s) 1664-1665 of 2024, the Hon’ble Apex Court held that “The normal rule is that witnesses shall be examined in the order laid down in Section 138 of the Indian EVIDENCE ACT , 1872.” The Hon’ble Apex Court further held that recording only the examination-in-chief without recording cross-examination is contrary to law.

5. The learned counsel appearing for the petitioner also submits that it is well settled law that any witnesses examined by th