Yog Raj vs Heena on 9 November, 2017

Crl. Misc. M-42365-2017 -1-

IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH

Crl. Misc. M-42365 of 2017 (OM)
Date of Decision: November 09, 2017

Yog Raj

…Petitioner

Versus

Heena

…Respondent

CORAM:- HON’BLE MS. JUSTICE JAISHREE THAKUR

Present:- Mr. Surinder Thakur, Advocate
for the petitioner.

********

JAISHREE THAKUR, J. (Oral)

The instant petition has been filed under Section 482 Cr.P.C.

for quashing of the impugned order dated 23.05.2017 passed by learned

Judicial Magistrate Ist Class, Hoshiarpur whereby, the court has declined

the opportunity to the petitioner for cross-examining the CW.

In brief, the facts of the case are that marriage of the petitioner

was solemnized with the respondent on 05.02.2013 at Village Nasrala,

Tehsil and District Hoshiarpur, but the said marriage cannot survive the test

of time, which resulted in registration of an FIR No.29 dated 12.03.2014,

under Sections 409, 498-A of Indian Penal Code. It is alleged that the

respondent-wife left the matrimonial home without permission of the

petitioner-husband and moved false and frivolous complaints against the

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petitioner as well as his other family members for the demand of dowry etc.

just to harass the petitioner and his other family members. It is submitted

that thereafter the respondent-wife filed a petition under Section 125 Cr.P.C.

for grant of maintenance, in which after completion of the pleadings, efforts

were made for reconciliation between the parties in Mediation Centre, but

the same remained unsuccessful. During this period, the respondent

tendered her affidavit in examination-in-chief and after return of the matter

by the Mediation Centre, the case was fixed for 29.04.2017, on which date

the case was adjourned for 11.05.2017 for evidence of the petitioner. On

11.05.2017 no CW was present, therefore, on the request of counsel for the

respondent, the case was adjourned to 23.05.2017. Thereafter on

23.05.2017, CW was present for cross-examination, but CW could not be

examined by the counsel for the petitioner on that date. The counsel for the

petitioner made a request for granting further opportunity for cross-

examining the CW, but the learned trial court declined further opportunity

to cross-examine the CW and on that date itself, the respondent closed her

evidence.

Learned counsel for the petitioner argued that it was neither

intentional nor deliberate on the part of the petitioner as well as his counsel

not to cross-examine the CW on the date fixed i.e. 23.05.2017. It is

contended that it was due to circumstances beyond their control, the CW

could not be cross-examined since the file had been misplaced in the office,

which could not be traced despite best efforts. It is also contended that non

cross-examination of the CW would have adverse impact over the entire

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case of the petitioner, therefore, in the interest of justice one opportunity

should be granted to the petitioner to cross-examine the CW.

I have heard learned counsel for the petitioner, apart from

perusing the record.

By way of instant petition, the petitioner-husband is seeking

quashing of the impugned order dated 23.05.2017 whereby, the learned trial

court has declined the opportunity to the petitioner for cross-examining the

CW. A perusal of the zimni orders appended with this petition goes on to

show that on 29.04.2017, the petition was received by transfer by the

learned trial court and a report from Mediation Centre was also received that

the mediation remained unsuccessful and the case was adjourned for

11.05.2017 for making payment as well as evidence of petitioner. On

11.05.2017, payment of Rs.1500/- was made by the petitioner-husband in

the account of the respondent-wife and receipts were also produced. Since

no CW was present, on the request of counsel for the complainant, the case

was adjourned to 23.05.2017 for CW. On 23.05.2017, CW was present and

an opportunity was given to learned counsel for the petitioner to cross-

examine the said witness, but he did not avail this opportunity and it was

ordered that no further opportunity to be accorded to the petitioner. On that

date itself, the respondent-wife closed her evidence and the case was fixed

for evidence of petitioner-husband. It is the order dated 23.05.2017, which

has been impugned in the present petition.

It is well settled proposition of law that the court should make

every endeavour to decide the case on merits and reasonable opportunity

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should be given to the parties to represent/set up their case by cross-

examining the witnesses produced against him/her. In the case in hand, on

29.04.2017 the case was received from the Mediation Cetnre and on the

next very date, no CW was present and therefore, the case was adjourned for

23.07.2017. On 23.07.2017, an adjournment was sought by counsel for the

petitioner to cross-examine the CW, but that was declined. The reason put

forth by counsel for the petitioner-husband not to cross-examine the CW on

23.05.2017 is that as the file was misplaced in the office and could not be

traced, CW could not be examined on that date.

Keeping in view the facts and circumstances of the present

case, this court is of the considered view that if one opportunity is granted

to the petitioner to cross-examine the CW, no prejudice is going to be

caused to the respondent except some delay, which can be compensated in

terms of money. Therefore, at this stage, without commenting on the merits

of the case, the instant petition is allowed and the impugned order dated

23.05.2017 is hereby set aside, subject to payment of Rs.5000/- as costs to

be paid to the respondent-wife. It is directed that the petitioner-husband

shall pay/deposit the costs of Rs.5000/- with the trial court within a period

of three weeks from today and on his doing so, only one effective

opportunity shall be given by the trial court to the petitioner to cross-

examine the CW and if the petitioner-husband fails to cross-examine the

CW on the said date, no further opportunity shall be given to the petitioner-

husband for this purpose.

This order has been passed in the absence of the respondent-

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wife, just to save time, money and other hardship of the respondent-wife to

come to this court and contest this petition by engaging a lawyer. However,

in case the respondent-wife has still any grievance against this order, she is

at liberty to approach the Registry for listing of this case.

With the above observations, the petition is hereby allowed.

(JAISHREE THAKUR)
November 09, 2017 JUDGE
vijay saini

Whether speaking/reasoned Yes/No
Whether reportable Yes/No

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