Joginder Singh vs State of Punjab

K.K. Srivastava, J. (Oral)

Heard learned counsel for the petitioner and learned counsel for the State.

By means of this petition filed under Section 482 Cr.P.C., the petitioner prays for quashing of order dated 8.12.1997, copy Annexure P2, passed under Section 319 Cr.P.C. by the learned Additional Sessions Judge, Patiala. It will appear from the perusal of the impugned order that the learned Addl. Sessions Judge, Patiala relied upon the statement of Tarsem Lal ASI PW1, which was recorded partly on 8.12.1997 and on the basis thereof he ordered the summoning of Joginder Singh son of Amar Singh the petitioner to face trial in the case under section 25 of the Narcotic Drugs & Psychotropic Substances Act, 1985. Learned counsel for the petitioner contends that a perusal of the statement of Tarsem Lal ASI, copy of which has been annexed as Annexure P1, will go to show that it was partly recorded inasmuch as crossexamination of the witness was deferred for want of Court time.

In somewhat similar circumstances a learned Single Judge of this Court (Hon''ble Mr. Justice P.K. Jain (as then he was) held in Balvinder Singh v. State of Haryana, 1996(3) RCR 231 that "it is necessary to admissibility of oral testimony that an opportunity to crossexamine the deponent should have been given. Where no opportunity to crossexamine the deponent has been given his testimony would be inadmissible and the same cannot be acted upon for any purpose much less for the purpose of invoking the powers under Section 319 of the Code." It was further held in para No. 6 of the judgment that "in the present case it is not disputed that the impugned order has been passed merely on the basis of the examinationinchief of the complainant and his cross examination has been deferred. Without giving an opportunity for cross examination to the accused person, the examinationinchief of Amritpal Singh in itself is not admissible in evidence. It would have been a different matter if an opportunity to crossexamine had been given but was not availed of. That is not the case here. Therefore, the impugned order is not sustainable in law."

Learned counsel for the petitioner points out that a perusal of Annexure P1 will go to show that crossexamination was deferred not at the instance of the crossexaminer but it was deferred as no time was left with the Court to complete the examination of the witness. This case is squarely covered by the aforesaid decision in the case of Balwinder Singh (supra). The impugned order is, thus, not in accordance with law and is based upon the statement of PW1, which is incomplete and cannot be treated as admissible in evidence.

Resultantly, this petition is allowed and the impugned order is quashed.