NASIB SINGH Vs. STATE OF HARYANA

JUDGEMENT

(1.) HEARD .

(2.) LEARNED counsel for the petitioner and the respondent -State and respondent No. 2 and perused the interim order dated 25.4.1998 passed by learned Addl. Sessions Judge, Ambala in session case No. 56 of 1997 arising out of F.I.R. No. 152 dated 18.6.1997 under section 307/452 I.P.C., 25/54/59 of Arms Act vide which the petitioner was summoned as an accused to face trial alongwith other co - accused. The contention of learned counsel for the petitioner is that learned Addl. Sessions Judge proceeded to consider the statement of the complaint which was incomplete and cross examination of complainant has been deferred and ordered for summoning of the petitioner under section 319 I.P.C. This factual position is not disputed by the respondent No. 2. Mr. Gorakh Nath, learned counsel for respondent No. 2 has fairly conceded the impugned order is not in accordance with settled law, Shri Bhag Singh, learned counsel for the petitioner has placed reliance on the judgment of learned Single Judge of this court in Balwinder Singh v. State of Haryana, 1996(3) RCR page 231 where in it was held that it is necessary, to the admissibility of oral testimony that an opportunity to cross -examine the deponent should have been given. Where no opportunity to cross -examine the depondent 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. The learned Single Judge placed the reliance on earlier judgment of this Court in Jagvinder Singh v. State of Punjab and another, 1996(2) RCR, 81 and quoted para 7 of the Judgment aforesaid reads asunder:

(3.) IN view of the decision of this court in the case of Balwinder Singh (supra), the impungned order is liable to be quashed. Petition is accordingly allowed and the impugned order is set aside.