Manvir Singh and Another vs State

R.A. Misra, J.—This petition u/s 482 of the Code of Criminal Procedure has been moved by Manvir Singh and two others with the prayer that the order dated 2-12-1983 passed by Sri Y.S. Raizada, III Additional Sessions Judge, Bulandshahr, rejecting the Petitioner''s application for permission to cross-examine the witness Kaptan Singh, whose evidence has been tendered by affidavit u/s 296 Sub-clause (1) of the Code of Criminal Procedure be quashed.

The facts which have given rise to this petition are briefly put as below.

The Petitioners are standing trial in ST No. 732 of 1982, State v. Mahavir Singh and Ors. under Sections 307/302 IPC in the Court of III Additional Sessions Judge, Bulandshahr. During the trial, the prosecution tendered the evidence of Kaptan Singh Constable No. 1237 by affidavit. The learned Counsel for the accused made an endorsement on the affidavit itself that he wanted to cross-examine the witness. The learned Sessions Judge rejected the prayer of the Petitioners'' counsel for permission to cross-examine Kaptan Singh. Hence this petition.

Section 296 Sub-clause (1) of the Code of Criminal Procedure lays down that the evidence of any person whose evidence is of a formal character may be given by affidavit and may, subject to all just exceptions, be read in evidence in any inquiry, trial or other proceeding under the Code. The Constable Kaptan Singh carried the dead body of the deceased for post mortem examination. The prosecution considered his evidence to be of a formal character and so rightly tendered his evidence by means of an affidavit. The affidavit was filed in the Court and the learned Counsel representing the accused-Petitioners prayed for permission to cross-examine Kaptan Singh. Sub-clause (2) of Section 296 of the Code of Criminal Procedure says that the Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any such person as to the facts contained in his affidavit. The learned Counsel for the Petitioner undoubtedly prayed for permission to cross-examine the witness whose evidence was tendered by affidavit u/s 296 Sub-clause (1) of the Code of Criminal Procedure and under Sub-clause (2) of Section 296 of the Code the Sessions Court had no option but to summon and permit the Petitioner''s counsel to cross-examine the witness when a prayer for the same was made. The order rejecting the Petitioner''s prayer for cross-examining the witness Kaptan Singh is illegal and without jurisdiction. The petition shall, therefore be allowed.

The petition is allowed. The order dated 2-12-1983 passed by Sri Y.S. Raizada, III Additional Sessions Judge, Bulandshahr rejecting the Petitioner''s prayer for cross-examining Kaptan Singh on the facts contained in his affidavit is hereby quashed. The learned Sessions Judge shall summon Kaptan Singh Constable and afford sufficient opportunity to Petitioner''s counsel to cross-examine him as to the facts contained in his affidavit. The stay order is vacated. The learned Sessions Judge to proceed with the trial without further delay.