KAUSHAL KUMAR GUPTA Vs. DEV SON PVT LTD

JUDGEMENT

(1.) The petitioner is being tried on charges punishable under Section 471/468/409 R.P.C. by Chief Judicial Magistrate, Jammu. After the conclusion of evidence of the prosecution and defence, when the arguments concluded, learned counsel for the complainant approached the court to correct the error which has occurred due to the non-compliance of Section 256(1) of the Code of Criminal Procedure. Allowing the application the Trial Court directed as under: It is a clear irregularity that all the witnesses examined before the framing of charge were not summoned by the court for cross-examination by the accused and it will not prejudice the accused because he will have an opportunity to cross-examine them and build-up his defence. In view of the authorities as cited above this irregularity is cured under Section 537 of the Criminal Procedure Code. This irregularity is cured and the witnesses examined before the framing of charge are directed to be summoned for cross-examination by the accused.

(2.) This order is challenged on the grounds that the accused petitioner had exercised the option under Section 256(1) of the Criminal Procedure Code but it was the complainant who failed to tender his witnesses, far cross-examination when it was stated that no mare witness would be examined whereafter the accused entered his defence. But, by passing the impugned order the court has reopened the trial which it could not do in view of the bar enacted by Section 369 of the Criminal Procedure Code. The argument of the respondent is that by passing the impugned order the court has merely tried to correct the error which, if allowed would have the consequence of vitiating the trial. The order, in fact is far the benefit of the accused who cannot make a grievance against it as he will have the right to say that he does or does not want to crass-examine any of the witness already examined and that would be the end of the matter and prosecution will be bound by its statement of not examining any fresh evidence.

(3.) The question arising for consideration is whether the order which merely seeks to enforce the statutory right available to the accused under Section 256(1) Criminal Procedure Code is an interlocutory order as argued by Mr. Gupta or an order of review as contended by Mr. Bakshi, because in the fanner case the order will not be interferred and in the latter, petition will succeed.