IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH CRM-M-23471-2023 (O&M)

Date of decision: 23.01.2026 Balwinder Singh and another ...Petitioners Versus State of Punjab and another ...Respondents CORAM: HON'BLE MRS. JUSTICE MANISHA BATRA Present:- Mr. Amit Dhawan, Advocate for the petitioners.

Ms. Ruchika Sabherwal, Senior DAG, Punjab.

MANISHA BATRA, J. (Oral)

1. The present petition has been filed by the petitioners under Section 482 of Cr.P.C. for quashing the order dated 20.04.2023, passed by the Court of learned Judicial Magistrate First Class, Nakodar in case titled as State vs. Balwinder Singh etc., arising out of FIR No. 65 dated 31.03.2011, registered under Sections 420, 465 and 120-B of IPC at Police Station Shahkot, whereby examination of chief of PW Inspector Onkar Singh was recorded in the absence of learned counsel for the petitioners and he was not granted any opportunity to even cross-examine this witness.

2. It is argued by learned counsel for the petitioners that the impugned order is not sustainable in the eyes of law as while passing the same, the learned trial Court has ignored the settled law. The petitioners are facing trial in the aforementioned case. On 20.04.2023, the petitioners were present before the learned trial Court. However, the learned trial Court recorded the examination-in-chief of prosecution witness Inspector Onkar Singh in the absence of counsel for the accused. A prayer was made by the counsel to record examination-in-chief of the said witness afresh in his presence but the same was declined by the learned trial Court and the case was adjourned for post lunch session for recording the cross-examination of the said witness. Even no opportunity to cross-examine the said witness had been accorded to the petitioners. While passing the impugned order, the learned trial Court has ignored the fact that when examination-in-chief of material prosecution witness is being recorded, the presence of counsel for the accused is required as he has a right to object to a leading or irrelevant question being asked to the witness. It has also been ignored by the learned trial Court that right to cross-examine the prosecution witness is an important right given to an accused and the learned trial Court should not have been hyper-technical in passing the impugned order. A great prejudice shall be caused to the rights of defence of the petitioners, if the examination-in-chief of the said witness is not recorded afresh in the presence of the counsel for the petitioners and if they are not granted to cross-examine him. Hence, it is urged that the petition deserves to be allowed and the impugned order is liable to be set aside. To fortify his arguments, learned counsel for the petitioners has relied upon Ekene Godwin and another vs. State of Tamil Nadu, 2024 (3) RCR (Criminal) 341 and Madan Lal and others vs. State of Rajasthan and others, 2012 (1) Cri. L. R. (Raj.) 224

3. Per contra, learned State counsel has argued that there is no illegality or infirmity in the impugned order. The examination-in-chief of the PW Inspector Onkar Singh was conducted in the presence of the accused. He was not a material witness and had proved some documents, which were already available on record since the date of presentation of challan. Hence, the dismissal of the petition is prayed for.

4. This Court has heard the rival submissions.

5. A careful reading of the zimni orders dated 20.04.2023 clearly reveals that the examination-in-chief of PW Inspector Onkar Singh was not recorded in the absence of the petitioners/accused. Both the accused had appeared before the learned trial Court, their presence was duly marked and they were informed that the said witness was present. It was on their own request that time was given to call their counsel and the examination-in-chief commenced in their presence. During the course of recording of evidence, learned defence counsel appeared and the remaining part of the examination- in