Vishwa Mittar Garg vs Central Bureau of Investigation

Sabina, J.—This petition has been filed u/s 482 of the Code of Criminal Procedure for setting aside the order dated 1.12.2009 passed by the Special Judicial Magistrate, CBI and to afford one opportunity by recalling witness Som Nath for cross-examining him in the case RC No. 24/96 dated 30.4.1996, under Sections 420, 409, 467, 468, 471, 120-B, of the Indian Penal Code at Police Station CBI, Chandigarh.

Learned senior counsel for the petitioner has submitted that PW-12 Somnath is the only material witness in this case. His examination-in-chief was recorded on 12.2.2009 but his cross-examination was deferred as the counsel for the petitioner was not available. The adjournment was granted to the petitioner subject to payment of Rs. 500/- as cost. On the adjourned date, two Pws were present. One PW was cross-examined by the counsel for the petitioner but PW Somnath could not be examined. In these circumstances, cross-examination of PW Somnath was treated as NIL. Learned senior counsel has further submitted that in the interest of justice only one opportunity be granted to the petitioner to enable him to cross-examine PW Somnath otherwise, the petitioner, who is facing the criminal proceedings since the year 1996, would suffer injustice.

Learned Counsel for the respondent, on the other hand, has opposed this petition and has submitted that despite the opportunity having been granted to the petitioner he had failed to cross-examine PW Somnath.

After hearing learned Counsel for the parties, I am of the opinion that the present petition deserves to be allowed.

In the present case, the petitioner was allowed opportunity to cross-examine PW Somnath but his counsel failed to do so. Although the petitioner was required to have acted with due diligence and cross-examine the witness on the dates he appeared before the trial Court but the petitioner, who is facing the criminal proceedings since the year 1996 would suffer manifest injustice, in case he is not allowed to cross-examine material prosecution witness PW Somnath. Moreover, in case the petitioner is allowed to cross-examine PW Somnath, the case would be decided on merits. Justice is a virtue which transcends all barriers. Neither the rules of procedure nor technicalities of law can stand in its way. Duty to do justice is paramount.

Accordingly, this petition is allowed. The impugned order is set aside and trial Court is directed to allow one opportunity to the petitioner to enable him to cross-examine PW Somnath.