As per application v. Y.R. Muralidhar

Judgment

#1. Instant petition has been filed under Section 528 of BNSS, for setting aside of order dated 01.04.2026 (Annexure P-7), passed by learned Chief Judicial Magistrate, Chandigarh, whereby cross-examination of complainant-Harshdeep Singh (PW2) was treated as ‘Nil’ and the opportunity to cross-examine PW2 was closed. There is a challenge to the order dated 25.05.2026 (Annexure P-9) also, whereby application filed by the petitioner under Section 311 Cr.P.C. for recalling the prosecution witness Harshdeep Singh (PW2) for conducting cross-examination was dismissed.

As per application, petitioners are facing trial in FIR No.0117 dated 18.07.2022, registered under Sections 406, 420 and 120-B IPC (corresponding to Sections 316, 318(4) and 61 of the BNS) at Police Station Central Sector-17, Chandigarh. The challan was presented and charges were framed on 06.05.2025. During trial, PW-2 Harshdeep Singh, who is the CRM-M-37529-2026(O&M) 2 complainant and the principal prosecution witness, was examined-in-chief on 18.11.2025. His cross-examination was deferred at the request of counsel for the petitioners. On the subsequent date, i.e. 03.02.2026, the matter was adjourned to 01.04.2026 for his cross-examination. On 01.04.2026, although petitioners and PW-2 were present before the Trial Court, counsel for the petitioners could not appear due to the critical condition of his nearly 95-year-old aged grandfather, who required his immediate care and attention. Consequently, learned Trial Court declined the request for adjournment, and treated the cross-examination of PW-2 as Nil, and proceeded further with the trial. Thereafter, the petitioners filed an application under Section 311 Cr.P.C. seeking recalling of PW-2 for the purpose of cross-examination, explaining the bona fide reason for the absence of their counsel. However, the said application was dismissed by the learned trial Court vide order dated 25.05.2026. Thus, present petition is filed.

#3. For deciding the issue raised by the petitioners and to save the time of the proceedings, which are pending before the trial Court, this Court does not find any necessity to call upon the respondent-complainant before this Court.

#4. In the case of T. Nagappa vs. Y.R. Muralidhar, 2008(5) SCC 633, paragraphs 8 and 11 read as follows: “8. An accused has a right to fair trial. He has a right to defend himself as a part of his human as also fundamental right as enshrined under Article 21 of the Constitution of India. The right to defend oneself and for that purpose to adduce evidence is recognized by Parliament in terms of Sub-section (2) of Section 243 of the Code of Criminal Procedure, which reads as under: CRM-M-37529-2026(O&M) 3 “243 Evidence for defence-(1) *** (2) If the accused, after he has entered upon his defence, applies to the Magistrate to issue any process for compelling the attendance of any witness for the purpose of examination or cross-examination, or the production of any document or other thing, the Magistrate shall issue such process unless he considers that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice and such ground shall be recorded by him in writing: Provided that, when the accused has cross-examined or had the opportunity of cross-examining any witness before entering on his defence, the attendance of such witness shall not be compelled under this Section, unless the Magistrate is satisfied that it is necessary for the ends of justice.”

#9. xxxx

#10. xxx

#11. The issue now almost stands concluded by a decision of this Court in Kalyani Baskar v. M.S. Sampoornam- (in which one of us, L.s. Panta, J., was a member) wherein it was held: (SCC p. 262, para 12) "12. Section 243(2) is clear that a Magistrate holding an inquiry under CrPC in respect of an offence triable by him does not exceed his powers under Section 243(2) if, in the interest of justice, he directs to send the document for enabling the same to be compared by a handwriting expert because even in adopting this course, the purpose is to enable the Magistrate to compare the disputed signature or writing with the admitted writing or signature of the accused and to reach his own conclusion with the assistance of the expert. The appellant is entitled to rebut the case of the respondent and if the document viz. the cheque on which the respondent has relied upon for initiating criminal proceedings against the appellant would furnish good material for rebutting that case, the Magistrate having declined to send the document for the examination and opinion of the handwriting expert has deprived the appellant of an opportunity of rebutting it. The appellant cannot be convicted without an opportunity CRM-M-37529-2026(O&M) 4 being given to her to present her evidence and if it is denied to her, there is no fair trial. 'Fair trial' includes fair and proper opportunities allowed by law to prove her innocence. Adducing evidence in support of the defence is a valuable right. Denial of that right means denial of fair trial. It is essential that rules of procedure designed to ensure justice should be scrupulously followed, and the courts should be jealous in seeking that there is no breach of them.”

#5. The guiding principle in the judgment of T. Nagappa’s case (supra) is that an accused must be afforded an opportunity to defend himself as part of his fundamental right. Therefore, such a right should not be denied on mere technicalities, particularly when granting permission to lead evidence of his choice is not causing any prejudice to the complainant.

#6. I have gone through the order dated 01.04.2026, whereby the learned Trial Court noticed that PW-2 Harshdeep Singh was present before the Court for his cross-examination. However, at the request of the accused persons, the cross-examination was deferred on the ground that their counsel was not available. The record further reveals that on the previous date of hearing, i.e. 03.02.2026, PW-2 was also present before the Trial Court. Even on that occasion, the cross-examination could not be conducted and, at the request of the accused, the matter was adjourned to 01.04.2026. On 01.04.2026, despite the presence of both the accused persons before the Trial Court, the cross-examination of PW-2 was again not conducted. Taking note of the conduct of the accused, the learned Trial Court treated the opportunity to cross-examine PW-2 as 'Nil'. CRM-M-37529-2026(O&M) 5 A perusal of the order dated 01.04.2026 shows that accused Paramjit Singh and Monika Rahal were personally present before the Trial Court. However, the valuable right of cross-examination of PW-2, who is the complainant and the star prosecution witness, was closed without affording the accused an opportunity to have their defence represented through an Amicus Curiae or a Legal Aid Counsel.

#7. On being asked by the Court, learned counsel for the petitioners submits that though the accused persons had engaged a counsel to represent them before the trial Court, however, it was unfair on his part and, therefore, accused i.e. petitioners, were left helpless in a situation without there being conducting cross-examination of any witness.

#8. It is evident from the record that no opportunity was granted to the petitioners to engage another counsel on that day, nor was any Legal Aid Counsel or Amicus Curiae appointed to safeguard their right of defence.

#9. The object of criminal jurisprudence is to ensure a fair trial and to enable the Court to arrive at the truth. Cross-examination is one of the most valuable rights available to an accused and constitutes an integral part of a fair trial. Where an accused is unrepresented, particularly at the stage of cross-examination of a material prosecution witness, and is himself not equipped to conduct the proceedings, it is incumbent upon the Trial Court to ensure that such right is not defeated merely on account of the absence of the engaged counsel. In such circumstances, the Trial Court ought to have considered granting a short accommodation, permitting the accused to CRM-M-37529-2026(O&M) 6 engage another counsel, or appointing an Amicus Curiae or Legal Aid Counsel after allowing reasonable time to prepare for the cross-examination. Asking the petitioner to go back to the trial Court and to move application in regard to the necessity for cross-examining the complainant at this stage, would be nothing but sheer wastage of time and multiplicity of moving of applications and then awaiting decision thereon.

#10. In view of the above, petitioners are granted one effective opportunity to cross-examine the complainant-Harshdeep Singh, within two weeks from today or within one week of the date already fixed before the trial Court, whichever is earlier in point of time.

#11. Let the complainant be informed by the trial Court about the present order and also to submit himself to the Court for the purpose of affording opportunity to the petitioner to conduct further cross-examination.

#12. Except one effective opportunity as detailed hereabove, no other chance would be afforded to the petitioner.

#13. Petition stands disposed of in the above terms. ( Sanjay Vashisth ) Judge

14.07.2026 Rajan Whether speaking / reasoned: Whether Reportable: Yes Yes