2017 (12) TMI 287 - HC - Indian Laws

Power to summon material witness, or examine person present - opportunity to cross-examine a witness is not given to the either of the party - Held that - The very purpose of Section 137 of Evidence Act and Section 311 Cr.P.C. would be defeated if the opportunity to cross-examine a witness is not given to the either of the party. In the present case the dismissal of the application moved by the petitioner No.1 under Section 145 (2) NI Act as well as under Section 311 Cr.P.C. otherwise means obstruction in bringing out the evidence on record. The Court is duty bound to allow the cross-examination of the witness whose examination-in-chief has already been recorded. Without allowing cross-examination of the statement of such witness the same cannot be read in evidence in the instant summary procedure case.

Summary

Issues Involved:
1. Quashing of the impugned order dated 16.05.2013.
2. Dismissal of the application under Section 311 Cr.P.C.
3. Right to cross-examine the complainant under Section 145(2) NI Act.
4. Compliance with procedural requirements under Cr.P.C. and NI Act.
5. Framing of notice under Section 251 Cr.P.C. in the absence of the petitioners.

Detailed Analysis:

1. Quashing of the Impugned Order Dated 16.05.2013:
The petitioners sought to set aside the impugned order dated 16.05.2013, which dismissed their application under Section 311 Cr.P.C. The petitioners argued that the learned Metropolitan Magistrate erred in dismissing their application, which sought to recall and cross-examine the complainant's witness. The court found that the dismissal of the application under Section 311 Cr.P.C. was unjustified, as it obstructed the petitioners' right to bring out evidence on record.

2. Dismissal of the Application Under Section 311 Cr.P.C.:
The petitioners filed an application under Section 311 Cr.P.C. to summon material witnesses and recall the AR of the complainant for cross-examination. The learned Metropolitan Magistrate dismissed this application on the grounds that an earlier application under Section 145(2) NI Act had already been dismissed and had attained finality. The court emphasized that Section 311 Cr.P.C. provides discretionary authority to summon, examine, recall, and re-examine witnesses if their evidence is essential to the just decision of the case. The court held that the learned Metropolitan Magistrate should have allowed the cross-examination of the witness to ensure a fair trial.

3. Right to Cross-Examine the Complainant Under Section 145(2) NI Act:
The petitioners argued that their right to cross-examine the complainant's witness was denied, which is a statutory right under Section 137 of the Indian Evidence Act. The court noted that cross-examination is crucial for discovering the truth and ensuring a just decision. The court held that the learned Metropolitan Magistrate's refusal to allow cross-examination was erroneous and violated the principles of natural justice.

4. Compliance with Procedural Requirements Under Cr.P.C. and NI Act:
The petitioners contended that there was non-compliance with the procedural requirements of Cr.P.C. and Section 143 NI Act. They argued that the learned Metropolitan Magistrate failed to follow the correct procedure while framing the notice and conducting the trial. The court observed that the learned Metropolitan Magistrate did not provide reasons for the procedure followed and emphasized the importance of adhering to procedural requirements to ensure a fair trial.

5. Framing of Notice Under Section 251 Cr.P.C. in the Absence of the Petitioners:
The petitioners challenged the framing of notice under Section 251 Cr.P.C. in their absence, arguing that it violated their rights. The court noted that the accused were exempted from personal appearance by an earlier order, and the notice was framed through their counsel. The court held that the procedure followed by the learned Metropolitan Magistrate was not arbitrary or illegal, as the exemption was granted by the court.

Conclusion:
The court allowed the petition, setting aside the impugned orders dated 11.10.2012 and 16.05.2013. The lower court was directed to give the petitioners an opportunity to cross-examine the witness in accordance with the law. The parties were instructed to appear before the lower court by 20.12.2017. The court emphasized the importance of cross-examination for a fair trial and the need to adhere to procedural requirements under Cr.P.C. and NI Act.