Kapil Dev alias Vijay Saluja vs State of Punjab

K.K. Srivastava, J.

Heard learned counsel for the petitioners and learned DAG Punjab and perused the impugned order dated 21.10.1997 passed by Judicial Magistrate 1st Class, Ferozepur. The sole grievance of the petitioners, who are accused facing trial in a criminal case before Judicial Magistrate 1st Class, Ferozepur, is that they have been denied opportunity to crossexamine the prosecution witnesses whose examinationinchief had been recorded by the trial court. The crossexamination could not be conducted on account of variety of reasons including the strike by the practising lawyers at Ferozepur. An application under Section 311 Cr.P.C. was moved by the trial Magistrate for recalling the witnesses for their crossexamination. The application has been declined by the Judicial Magistrate by making these observations :

"The perusal of the file shows that the statement of Chaman Lal PW2 was recorded on 28.9.1995. Similarly, the statements of Arvind Kumar PW.3 and Rakesh Rani PWs were recorded on the same day and their crossexamination was deferred and they were bound down for 8.11.1995 and their crossexamination was not conducted on 8.11.1995 as one of the accused persons namely Ramesh Kumar was not present on that day and they were further bound down for 17.1.1996. Further on 17.1.1996, all of them appeared in the court and they were put in the dock for crossexamination by the accused. However, the accused/applicants had not put any question to all of them by way of cross examination though full opportunity was given to them for crossexamination. Thus, the accused have not been prejudiced in any manner. Rather they have been provided with full opportunity to crossexamine all these PWs. The present application appears to have been filed just to prolong the case. The case has arrived at the fag end. Moreover, the statements of these witnesses were recorded on 28.9.1995 and after two adjournments, they were tendered for crossexamination by the accused on 17.1.1996 and the instant application has seen the light of the day only on 9.10.1997. Thus, I do not find any justification to recall these witnesses. Consequently, I find no merit in the application and the same is hereby dismissed."

The learned Magistrate, in my considered view, approached the matter on wholly a wrong premises. It is cardinal rule that the accused should be afforded a reasonable opportunity of defending himself which includes right to crossexamine the prosecution witnesses. It is not clear from the impugned order as to under what circumstances the examinationinChief of the witnesses, referred to in para 4 of the order, was recorded contrary to the provisions of Indian Evidence Act. Section 135 of the Indian Evidence Act deals with the order of production and examination of witnesses and lays down as under :

"JUDGMENT of production and examination of witnesses : The order in which witnesses are produced and examined shall be regulated the law and practice for the time being relating to civil and criminal procedure respectively, and, in the absence of any such law, by the discretion of the Court."

Section 137 of the Evidence Act deals with examinationinChief and provides :

"ExaminationinChief : The examination of a witness by the party who calls him shall be called his examinationinChief.

Crossexamination : The examination of a witness by the adverse party shall be called his crossexamination.

Reexamination : The examination of a witness, subsequent to the cross examination by the party who called him, shall be called his reexamination"

Section 138 of the Evidence Act deals with the order of examinations and provides as under :

"JUDGMENT of examinations : Witnesses shall be first examinedinChief then (if the adverse party so desires) crossexamined, then (if the party calling him so desires) reexamined.

The examination and crossexamination must relate to relevant facts but the crossexamination need not be confined to the facts which the witness testified on his examinationinchief.

Direction of reexamination : The reexamination shall be directed to the explanation of matters referred to in crossexamination; and if new matter is, by permission of the Court, introduced in reexamination, the adverse party may further crossexamine upon that matter."

Once the first witness entered the witness box, his evidence ought to have been recorded in the manner as provided by the provisions of the Evidence Act, referred to above. It has not been mentioned in the order that the cross examination of these witnesses was sought to be deferred by the accused applicants. Apart from it, the cause shown in the petition was the strike by the District Bar which prevented the applicants from proceeding with the crossexamination of the evidence of prosecution and that is quite sufficient. In view of what has been stated above, this petition has considerable merit and is allowed. The impugned order is set aside. It is directed that the learned Judicial Magistrate 1st Class. Ferozepur will recall the witness whose examinationinChief has been recorded as mentioned in the impugned order for crossexamination by the applicants and to proceed to record the evidence strictly in accordance with Section 138 of the Evidence Act. It is, however, mentioned that the applicants shall proceed with the cross examination of these witnesses and not seek further adjournment in the case.

Disposed of accordingly.