TMI Blog2018 (11) TMI 185X X X X Extracts X X X X X X X X Extracts X X X X ..... ority of the petitioner to cross-examine a particular witness. Controller of the process of evidence is the Trial Court. Opportunity is to be granted by the Court to the accused to cross-examine a witness through specific order. The records, produced before the Court, does not show that after examination of these additional witnesses the petitioner was ever granted any opportunity to cross-examine the complainant. Therefore, the testimony of Complainant; with reference, subsequently examined witness of the Complainant himself, has remained totally un-cross-examined and unconfronted to the Complainant. The petitioner is granted one effective opportunity to cross-examine the Complainant(CW-1) and Bhupinder Singh (CW-2) - petition allowed by way of remand. - CRM-M-46677-2018 - - - Dated:- 25-10-2018 - MR RAJBIR SEHRAWAT, J. For The Petitioner : Mr. Mayur Karkra, Advocate For The Respondent : Mr. A.D.S.Jattana, Advocate ORDER Rajbir Sehrawat, J(Oral) This petition has been filed for quashing of the Order dated 04.08.2018(Annexure P-4); passed by the Judicial Magistrate Ist Class/SAS Nagar(Mohali); in Comp.No.NIA-368-17 dated 03.05.2017 under Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s present, therefore, the case was adjourned for 10.07.2018 for recording of additional statement of the accused under Section 313 Cr.P.C. At this stage, the application is moved by the petitioner for recalling of Complainant(CW-1) and the above said Bhupinder Singh(CW-2) for further cross-examination. This application of the petitioner was dismissed by the Trial Court vide impugned order dated 04.08.2018. It is this Order which is being impugned in the present petition. Learned counsel for the petitioner has argued that since Bhupinder Singh(CW-2) was summoned as additional witness by allowing the application filed by the complainant under Section 311 Cr.P.C; though he was not named as a witness at the time of filing of the complaint; and Bhupinder Singh has disclosed certain facts, therefore, the petitioner would require to further cross-examine the complainant also; with reference to the facts which have surfaced and have become relevant after examination of Bhupinder Singh(CW-2). It is contended that after examination of Bhupinder Singh(CW-2), the petitioner has not been granted any opportunity to further cross examine the complainant. It is further contended that even at th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of the Hon'ble Supreme Court rendered in 2016(2)SCC 402; State(NCT of Delhi) vs. Shiv Kumar Yadav to contend that change of counsel is not a ground for allowing the application under Section 311 Cr.P.C. Learned counsel further submits that the judgment relied upon by the counsel for the petitioner in case of Hoffman Andreas(supra) has already been referred to; by the subsequent bench; in the case of State(NCT of Delhi)(supra) . In the end, it is contended by learned counsel for the respondent that the application moved by the petitioner is not bonafide and nothing has been disclosed as to the requirement of moving application under Section 311 Cr.P.C. It is also contended that even if the application of the petitioner is to be allowed then he should be permitted to re-crossexamine only the complainant and even the scope of his cross-examination should be restricted to the new facts which have come in the deposition of the additional witnesses examined by the respondent/complainant. Having heard the learned counsel for the parties, this Court finds that the Trial Court ought to have allowed the application moved by the petitioner. It is not disputed that; at th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... already cross-examined the complainant, therefore, he can not be granted any opportunity to re-crossexamine him, is totally unsustainable. When the petitioner had crossexamined the Complainant, he was not even aware of the fact that Bhupinder Singh(CW-2), would at all, be a witness in this case. So, by any means, the petitioner has got every right to further cross-examine atleast the complainant, to confront him qua the facts involved in the complaint with reference to the additional testimony made by Bhupinder Singh(CW-2). Therefore, the petitioner had moved an application for summoning of the Complainant(CW-1) and Bhupinder Singh(CW-2) to further cross-examine these witnesses. This Court is of the considered opinion that to cross-examine the complainant, after the examination of additional witness of complainant, Bhupinder Singh(CW-2), is his legal right, which could not have been declined by the Trial Court. Although learned counsel for the respondent/complainant has submitted that the cross-examination be limited only to Complainant(CW-1) and even scope of his cross-examination be restricted to only new facts emerging in testimony of additional witnesses of the Complainan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had permitted to crossexamine the Complainant once again, in view of the peculiar facts, the pleadings and the change of counsel. Besides, the Hon'ble Supreme Court has also observed that the Trial Court should have adopted a liberal approach, so as to give a fair opportunity to the accused to defend himself against the charge levelled against him. Although, the counsel for the respondent has submitted that the judgment of the Hon'ble Supreme Court, relied upon by the counsel for the petitioner i.e. in case of Hoffman Andreas(supra) has been referred to by the subsequent bench in the subsequent judgment of State(NCT of Delhi) (supra) , however, a perusal of the subsequent judgment of the Hon'ble Supreme Court rendered in State of NCT(supra) also shows that the subsequent bench has neither over-ruled the earlier judgment, nor has laid down any inflexible rule that on the ground of change of counsel, the application under Section 311 Cr.P.C. can not be allowed by the Trial Court. Even in this subsequent judgment the Hon'ble Supreme Court has emphasised on the fact that advance of justice remains the prime object of law. Although in this judgment the Hon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt case, it was not legally sustainable or justified on the part of the Trial Court to dismiss the application moved by the petitioner, and thereby to deny him the opportunity to further cross-examine the complainant(CW- 1) and witness Bhupinder Singh(CW-2). Although, learned counsel for the respondent/complainant has also argued that the petitioner was never denied the opportunity to crossexamine these witnesses by the Trial Court, however, this Court finds that it is not entirely within the discretion and authority of the petitioner to cross-examine a particular witness. Controller of the process of evidence is the Trial Court. Opportunity is to be granted by the Court to the accused to cross-examine a witness through specific order. The records, produced before the Court, does not show that after examination of these additional witnesses the petitioner was ever granted any opportunity to cross-examine the complainant. Therefore, the testimony of Complainant; with reference, subsequently examined witness of the Complainant himself, has remained totally un-cross-examined and unconfronted to the Complainant. In view of the above, the impugned order dated 04.08.2018 (Annexure ..... X X X X Extracts X X X X X X X X Extracts X X X X
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