The right to cross-examination is a fundamental part of a fair trial and should not be denied without just cause.

HIGH COURT OF JUDICATURE FOR RAJASTHAN

BENCH AT JAIPUR

S.B. Criminal Miscellaneous (Petition) No. 3228/2019

Bhim Singh Shekhawat S/o Shri Jaswant Singh Shekhawat R/o

Plot No.171, Shakti Nagar, Opp. Heerapura Power House, Ajmer

Road, Jaipur, Raj.

----Petitioner

Versus

Dashrath Singh S/o Shri Kapoor Singh, R/o B-186, Ayodhya

Nagar, Kanha Vihar, Sirsi Road, Jaipur, Raj.

----Respondent

For Petitioner(s)

:

Mr. Rakesh Kumar Saini

Mr. Raghu Nandan Sharma

For Respondent(s)

:

Mr. Sandeep Bhagwati

HON'BLE MR. JUSTICE ANOOP KUMAR DHAND

Order

03/01/2023

Instant petition has been filed by the petitioner against the

impugned order dated 04.02.2019 passed by the Special

Metropolitan Magistrate (N.I. Act Cases) No. 13, Jaipur

Metropolitan in criminal case No. 122/2016 (310/2014) by which

the application filed by the petitioner for removing the affidavit of

the complainant from record has been dismissed and opportunity

of cross examination has been closed.

Counsel for the petitioner submits that the petitioner is

facing trial for the offence under Section 138 of the Negotiable

Instrument Act (for short, ‘the Act’). Counsel submits that by

passing the impugned order the trial Court has closed the

opportunity of cross-examination with the complainant. Counsel

submits that fair trial is the main object of criminal procedure and

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[CRLMP-3228/2019]

right of cross-examination is a part of fair trial which every person

has in the spirit of right to life and personal liberty. Counsel

submits that the petitioner has been deprived with this

opportunity of cross-examination, so in the interest of justice, one

last opportunity be granted to the petitioner to cross-examine the

complainant.

Per contra, learned counsel for the respondent has opposed

the prayer made by the learned counsel for the petitioner and

submitted that the petitioner is facing trial for the offence under

Section 138 of the Act since 2014. Counsel submits that substance

of accusation was read over to the petitioner on 28.08.2017 and

thereafter, the case was posted for cross-examination with the

complainant. Counsel submits that till the passing of the impugned

order the petitioner is failed to avail the said opportunity for one

reason or other. Counsel submits that on several occasions last

opportunity was granted to the petitioner for cross-examination

subject to payment of cost but neither the cost was paid nor the

cross-examination was done by the petitioner. Counsel submits

that the sole object of the petitioner is to delay the disposal of the

complaint. Counsel submits that under these circumstances, no

indulgence should be granted to the petitioner as the trial Court

has not committed any error in passing the impugned order.

I have heard the rival submissions and perused the material

available on record.

This fact is not in dispute that the petitioner is facing trial for

the offences under Section 138 of the Act since 2014 and the

accusation was read over to the petitioner on 08.09.2017 and

thereafter, the case was posted for cross-examination. More than

twenty opportunities were granted to the petitioner to cross-

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[CRLMP-3228/2019]

examine with the complainant subject to payment of cost but

neither the cost was paid nor the cross-examination was done by

the petitioner. Though the object of the petitioner is to delay the

disposal of the complaint but fair trial is the main object of

criminal procedure and the right of cross examination is a part of

fair trial which every person has in the spirit of right to life and

personal liberty.

The Hon’ble Apex Court in the case of Natasha Singh Vs.

CBI (State) reported in 2013 AIR SCW 3554 has held in para

9 as under:-

“Fair trial is the main object of criminal

procedure, and it is the duty of the court to

ensure that such fairness is not hampered or

threatened in any manner. Fair t