Mandatory to recall witness for cross-examination on application of accused – holds HP High Court

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Code of Criminal Procedure, 1973 – Section 142 (2) – evidence by way of affidavit – recalling of witness on application made by accused – recalling for purpose of cross-examination is mandatory – rejection of application of accused by trial court not justified – accused not required to state his defence in application for recalling of witness for purpose of cross-examination – a careful perusal of the second part of S.145(2), nowhere talks about assigning reasons in the application for recall/reexamination of a witness, meaning thereby that it is obligatory for the court to recall complainant or its witnesses, if an application is made in that behalf.

Interpretation of statute – Code of Criminal Procedure, 1973 – Section 142 (2) – word “shall” – Section 145 envisages two situation – first is where Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any person giving evidence on affidavit as to the facts contained therein – Second part thus makes it mandatory for the Court to recall witness for purpose of cross-examination where an application has been made. Word “shall” means mandatory.

7. Close scrutiny of the aforesaid provisions contained in S.145(2) clearly reveals that it is in two parts, first part provides that the court, of its own, may summon accused to examine him with regard to the contents contained in the affidavit given by him in his evidence, whereas second part casts a duty upon the court to summon a person, who has given evidence by way of affidavit, if application is made for this purpose by the opposite party. Aforesaid provision nowhere suggests that a party making application under this provision of law, is required to assign reasons for summoning the person, who has given evidence by way of affidavit. No doubt, S.145 (1), as has been taken note herein above, provides that notwithstanding anything contained in the Code, evidence of the complainant can be given by him on affidavit, but this provision further provides that the evidence given by way of affidavit may be read subject to all just exceptions in evidence, in any enquiry, trial or proceedings under the said Code.

8. S.145, with its non obstante clause, as taken note herein above, though provides for evidence of the complainant by way of affidavit but, certainly, affidavit of the complainant can be read in evidence, subject to all just exceptions, meaning thereby nothing inadmissible in evidence i.e. irrelevant facts or hearsay evidence would be taken as evidence even though stated on affidavit.

14. It is quite clear from the aforesaid exposition of law that though there is no necessity to recall and reexamine complainant but Magistrate can pass a specific order to recall the complainant. Such an order is to be passed either on an application made by the accused or under Section 145(2) of the Act or suo motu by the Court.

15. In the case at hand, application under S.145(2) came to be filed on behalf of the accused, seeking therein permission to cross-examine the accused with regard to contents contained in the affidavit tendered by him in evidence. But, as has been taken note herein above, application filed by accused came to be dismissed on the ground that the accused has not mentioned as to what was legally due from him to the Bank or what amount mentioned in the cheque was not legally recoverable from him at the relevant time, which reasoning given by learned Court below does not appear to be plausible, in view of the specific stand taken by accused in his application filed under S.145 (2), wherein he has stated that the accused issued blank cheque as security to the complainant, but complainant filled up wrong amount in the said cheque and subsequently concocted a false story with a view to grab money from the accused. Accused specifically mentioned in the application that he wants to cross-examine complainant’s witnesses, who have given evidence on affidavit to protect his interest as well as to bring truth before the court.

16. Having carefully perused aforesaid plea raised by accused in the application, this court is not in agreement with the findings recorded by learned Court below, while passing impugned order that the defence plea raised by the accused is neither substantial nor specific. Accused has specifically taken a plea that though he had issued blank cheque as security, but subsequently wrong amount came to be filled in the same by complainant, as such, accused is well within his right to cross- examine the complainant and its witnesses, specifically on the aforesaid points. Moreover, as has been observed herein above, a careful perusal of the second part of S.145(2), nowhere talks about assigning reasons in the application for recall/reexamination of a witness, meaning thereby that it is obligatory for the court to recall complainant or its witnesses, if an application is made in that behalf.

17. Leaving everything aside, no prejudice, whatsoever, would be caused to the complainant, in case, complainant and its witnesses are cross-examined on the specific points, taken note herein above, rather, this would help the court below to effectively adjudicate upon the controversy inter se parties.

18. Consequently, in view of detailed discussion made herein above, present petition is allowed. Order dated 2.2.2019 passed by learned Chief Judicial Magistrate, Nurpur, District Kangra, Himachal Pradesh in Case No. 295-IV/16 is quashed and set aside. Application moved by the accused under S.145(2) is allowed. Learned Court below to fix a date for crossexamination of the complainant and its witnesses.

CrMMO No. 216 of 2019 Anu Sharma Vs Punjab National Bank decided on 07.08.2019 Coram: Hon’ble Mr. Justice Sandeep Sharma, Judge

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Code of Criminal Procedure, 1973 – Section 145

  1. Evidence on affidavit.—

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the evidence of the complainant may be given by him on affidavit and may, subject to all just exceptions be read in evidence in any enquiry, trial or other proceeding under the said Code.

(2) The Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any person giving evidence on affidavit as to the facts contained therein.

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