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Judgment
Rakesh Kainthla, Judge
The petitioners have filed the present petition seeking quashing of the order dated 22.01.2026 passed by Learned Chief Judicial Magistrate, Lahaul and Spiti at Kullu, H.P (Learned Trial Court) (The parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).
Briefly stated, the facts giving rise to the present petition are that the respondent/complainant filed a complaint under Section 138 of the Negotiable Instruments Act (NI Act) against the petitioners/accused for dishonour of the cheque of ₹5,00,000/-.
The Learned Trial Court found sufficient reasons to summon the petitioners. When the petitioners appeared, a notice of accusation was put to them for the commission of an offence punishable under Section 138 of the NI Act, to which they pleaded not guilty and claimed to be tried.
The matter was listed for recording the complainant’s statement on 22.01.2026, but the petitioners could not appear before the learned Trial Court, and the petitioners’ right to cross-examine the complainant was closed.
Being aggrieved by the order passed by the learned Trial Court, the petitioners have filed the present petition asserting that their learned counsel had put in appearance before the learned Trial Court in the morning, but he failed to appear before the Court subsequently. The complainant’s evidence was recorded in the petitioners’ absence, which is not permissible in law. The opportunity to cross-examine the complainant was not granted to the petitioners, which materially prejudiced their right. The petitioners cannot be faulted for the negligence of their counsel. They had duly instructed their counsel to file an application for exemption; however, he failed to do so. The case status mentioned the date of hearing as 23.02.2026, but the matter was listed on 22.01.2026, because of which the petitioners could not appear before the Court and had to request for exemption. Hence, it was prayed that the present petition be allowed and the order passed by the learned trial Court be set aside.
I have heard Mr Lokesh Thakur, learned vice counsel representing the petitioners and Mr Vikrant Chandel, learned counsel for the respondent.
Mr Lokesh Thakur, learned vice counsel representing the petitioners, submitted that the petitioners had noted the date of hearing as 23.02.2026, which was also reflected in the case status (Annexure P-3). When they came to know about the listing of the matter on 22.01.2026, they requested their learned counsel to file an application for exemption, but he failed to adhere to the instructions imparted by the petitioners, and the Court closed the petitioners' right of cross-examination, which has materially prejudiced the petitioners. Therefore, he prayed that the present petition be allowed and the order dated 22.01.2026 passed by the learned Trial Court be set aside. He relied upon the judgment of this Court in Vikram versus State of HP 2024 HSC 3715 in support of his submission.
Mr Vikrant Chandel, learned counsel for the respondent/complainant, submitted that the petitioners had failed to assign any reasonable cause for their non-appearance before the Court. The Court was justified in closing the right to cross-examine the complainant as per the provisions of Section 309 of the CrPC. A person cannot take advantage of his own wrong. Therefore, he prayed that the present petition be dismissed.
I have given considerable thought to the submissions made at the bar and have gone through the records carefully.
A perusal of the order dated 22.01.2026 shows that the matter was taken up in the morning and learned counsel for the petitioners appeared before the Court, who submitted that he would be moving an application for the petitioners' personal exemption after the lunch hour. The learned trial Court adjourned the matter after lunch. The matter was taken up after lunch, but no person was present. Hence, the Court passed an order at 04.30 p.m. that the right to cross-examine the witness is closed and the matter be listed for recording the petitioners’ statement under Section 313 of the CrPC on 13.05.2026.
The learned Trial Court had passed the order at 04.30 p.m. It was laid down by this Court in Him Advances & Savings Pvt. Ltd. Vs Dila Ram & Ors. 2003(1) Cur. L.J. (HP) 458 that the normal Court hours are till 04.00 p.m. It was observed:
“7.There is yet another aspect of the matter which also renders the dismissal order illegal. Order dated 29.2.2000 passed in each complaint reveals that the cases were called for the first time at 12.30 p.m., for the second time at 2.45 p.m. and lastly at 4.30 p.m., when these were dismissed. It is improbable that all three cases were called simultaneously and were dismissed simultaneously. Moreover, as per Circular Letter No. HHC/Admn. 22(A) 77 dated 6th July, 1983, published in Circular Orders of the High Court of Himachal Pradesh, 1st Edition (1st Volume) 1991, the ordinary court hours of all the Subordinate Courts in Himachal Pradesh are from 10 a.m. to 4 p.m. with an interval for lunch from 1 p.m. to 1.30 p.m. Thus, the Court proceedings can take place only between 10 a.m. and 4 p.m., except from 1 p.m. to 1.30 p.m., unless the parties agree to conduct the proceedings before or after the Court working hours. As already stated hereinabove, the complaints were dismissed at 4.30 p.m., i.e., 30 minutes after the court working hours were over. No litigant can be legitimately expected to appear before or after the court hours to attend to his case. Therefore, the complaints which were called beyond the court working hours could not be and should not have been dismissed for default of appearance.”
This judgment was followed in Contermann Piepers (Indian) Ltd. Vs Himachal Fibres Ltd. 2003(2) SimLJ 1576, and it was held that no litigant can be expected to be present after the court hours. It was observed:
“4.It is not in dispute that the case was called at 4.50 p.m. on 20.4.2002, when none put in appearance, the case was dismissed for default of appearance. There is no dispute that the prescribed Court hours of all the subordinate Courts in Himachal Pradesh are from 10 a.m. to 4 p.m., with an interval for lunch from 1 p.m. to 1.30 p.m. Thus, the Court proceedings can take place only between 10. a.m. and 4. p.m., except from 1 p.m. to 1.30 p.m., unless the parties agree to conduct the case before or after the Court hours. Thus, the learned Trial Magistrate called and dismissed the complaint beyond the court hours. No litigant can be legitimately expected to appear before or after the Court hours to attend to his case. Therefore, the complaint could not have been dismissed for default of appearance of the complainant after the Court hours (see M/s. Him Advances and Savings Pvt. Ltd. v. Dila Ram, Crl. Revision No. 38 of 2001 dated 9.1.2003).”
Therefore, it was impermissible to pass an adverse order after the Court hours, and the order cannot be sustained on this short ground alone.
The case status annexed to the present petition mentioned the date of hearing as 23.02.2026, which corroborates the petitioners’ version that they remained under the impression that the case would be taken up on 23.02.2026, and when they came to know about the listing of the matter on 22.01.2026, they instructed their counsel to file an application for exemption. This is also apparent from the order sheet of the Court, in which the Court had noticed that the learned counsel for the petitioners had undertaken to file an application for exemption after the lunch hour. It was rightly submitted on behalf of the petitioners that they cannot be penalised for the fault of their learned counsel.
Section 309 of Cr.P.C. deals with the power to postpone or adjourn the proceedings. Section 309 proviso (c) reads as under:
"309 (2) (c). Where a witness is present in court but a party or his pleader is not present or the party or his pleader though present in court, is not ready to examine or cross-examine the witness, the court may, if thinks fit, record the statement of the witness and pass such orders as it thinks fit dispensing with the examination-in-chief or cross-examination of the witness, as the case may be".
It is apparent from the proviso to the section that the Courts are vested with the power to dispense with the cross-examination or examination-in-chief of the witness where the learned counsel is not ready to cross-examine or examine the witness, or the party or his learned counsel is not present. Therefore, no fault can be found with the order passed by the learned Trial Court.
It was laid down by the Madhya Pradesh High Court in Omprakash Bhargava Vs. Hotham Singh Kushwah 2019 Cri. L. J. 4131 that the Court can grant an opportunity to cross-examine the witness, subject to payment of costs, where the witness could not be cross-examined, and cross-examination of the witness was dispensed with under Section 309 of Cr.P.C. A similar view was taken by the Rajasthan High Court in Hanumana Ram Vs. State of Rajasthan 2016 Cri. L. J. 1706, wherein it was observed:
“8.Ex facie, the order passed by the trial court does not suffer from any illegality or irregularity whatsoever. Nonetheless, the fact remains that the accused is facing trial for the offence under Section 302, IPC, which carries capital punishment. It need not be said that if the accused is not allowed to cross-examine the prosecution eyewitness, his defence will definitely be prejudiced. Thus, while upholding the order passed by the trial court to the extent the trial court rejected the prayer made by the accused for deferment of the statements of the witness, the petitioner deserves to be given one opportunity for effective cross-examining the witness Birda Ram but subject to depositing cost of Rs.2,000/- by modifying the order passed by the trial court to this extent.”
In the present case, the petitioners were prevented from appearing by the wrong date in the case status and by the conduct of their learned counsel. Hence, in these circumstances, the present petition is allowed, and the order dated 22.01.2026, passed by learned trial Court is ordered to be set aside subject to the payment of cost of ₹ 5,000/- to be paid to the complainant, which shall be a condition precedent for permitting them to cross-examine the complainant.
The observations made hereinabove are regarding the disposal of this petition and will have no bearing whatsoever on the merits of the case.