1 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRMP No. 2989 of 2025 1 - Devendra Nirmalkar S/o Johan Nirmalkar Aged About 58 Years R/o Ward No. 58 Urala, P.S. Mohan Nagar, Dist- Durg C.G. ... Petitioner(s) versus 1 - State Of Chhattisgarh Through P.S. Arjunda, Dist.- Balod C.G. ... Respondent(s) For Petitioner(s) : Mr. Sumit Singh, Advocate. For Respondent(s) : Mr. Akhilesh Kumar, Govt. Advocate. Hon’ble Shri Justice Ravindra Kumar Agrawal, J. Order on Board 25/09/2025 1. The petitioner has challenged the order dated 17.02.2025 passed by learned First Additional Sessions Judge, Balod, District Balod in Sessions Case No. 02/2024, whereby the right to cross-examine the PW-5 Dr. Smt. S. P. Khan has been fortified and case was fixed for recording of evidence of other witnesses. 2. The subject matter in brief is that the petitioner is facing a criminal trial for the offence under Section 307 and 34 of IPC before the learned First Additional Sessions Judge, Balod in Sessions Case No. 02/2024. On 17.02.2025, the Dr. Smt. S. P. Khan, Medical Officer appeared before the learned trial Court for recording of her evidence. However, on that day learned counsel appearing for the petitioner was not available as he had gone to Delhi to ALOK SHARMA Digitally signed by ALOK SHARMA Date: 2025.09.26 12:03:42 +0530 2 appear in a matter before the Hon’ble Supreme Court and then his junior counsel has made an application for grant of an adjournment on that ground and prayed for time to cross-examine the medical witness. However, while rejecting the application for grant of time to cross-examine the medical witness, the learned trial Court has fortified right to cross-examine the witness and proceed further for recording of other witnesses, which is under challenge in the present petition. 3. Learned counsel for the petitioner would submit that since the counsel who is representing the petitioner before the learned trial Court in sessions trial had gone to Delhi to appear in a case before the Hon’ble Supreme Court and for that reason his junior counsel has made an application for grant of time to cross-examine the medical witnesses, it was the bona fide ground for which the adjournment was sought and it was the only occasion where the application for adjournment for cross-examine the medical witness was filed. He would further submits forfeiting the right to cross-examine the medical witness would prejudice the defence of the accused and the accused is ready to cross-examine the medical witness without any further delay, therefore, impugned order may be set aside and the learned trial Court may be directed to permit the petitioner to cross-examine the medical witnesses through his counsel. 4. On the other hand, learned counsel appearing for the State opposes and submitted that the ground raised by the petitioner in the application is not sufficient, therefore, the learned trial Court has rightly rejected the application of the petitioner which is not required to be interfered with. 5. I have heard learned counsel for the parties and perused the material annexed with the petition. 6. In the matter of Ayaaubkhan Noorkhan Pathan vs. State of Maharashtra and Others 2013 (4) SCC 465, the Hon’ble Supreme Court has held that the 3 cross-examination is one part of the principles of natural justice and has held in Para 24 to 30 that: “24. A Constitution Bench of this Court in State of M.P. v. Chintaman Sadashiva Waishampayan33 held that the rules of natural justice require that a party must be given the opportunity to adduce all relevant evidence upon which he relies, and further that, the evidence of the opposite party should be taken in his presence, and that he should be given the opportunity of e cross-examining the witnesses examined by that party. Not providing the said opportunity to cross-examine witnesses, would violate the principles of natural justice. (See also Union of India v. T.R. Varma34, Meenglas Tea Estate v. Workmen's, Kesoram Cotton Mills Ltd. v. Gangadhar36, New India Assurance Co. Ltd. v. Nusli Neville Wadia³, Rachpal Singh v. Gurmit Kaur38, Biecco Lawrie Ltd. v. State of W.B.39 and State of U.P. v. Saroj f Kumar Sinha 40) 25. In Lakshman Exports Ltd. v. CCE¹¹, this Court, while dealing with a case under the Central Excise Act, 1944, considered a similar issue i.e. permission with respect to the cross-examination of a witness. In the said case, the assessee had specifically asked to be allowed to cross- examine the representatives of the firms concerned, to establish that the goods in question had been accounted for in their books of accounts, and that excise duty had been paid. The Court held that such a request could not be turned down, as the denial of the right to cross-examine, would amount to a denial of the right to be heard i.e. audi alteram partem. 26. In New India Assurance Co. Ltd. v. Nusli Neville Wadia³7, this Court considered a case under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 and held as follows: (SCC p. 295, para 45) "45. If some facts are to be proved by the landlord, indisputably the occupant should get an opportunity to cross-examine. The witness who intends to prove the said fact has the right to cross- examine the witness. This may not be provided by under the statute, but it being a part of the principles of natural justice should be held to be indefeasible right." (emphasis added) In view of the above, we are of the considered opinion that the right of cross-examination is an integral part of the principles of natural justice. 27. In K.L. Tripathi v. SBI42, this Court held that, in order to sustain a d complaint of the violation of the principles of natural justice on the ground of absence of opportunity of cross-examination, it must be established that some prejudice has been caused to the appellant by the procedure followed. A party, who does not want to controvert the veracity of the evidence on record, or of the testimony gathered behind his back, 4 cannot expect to succeed in any subsequent grievance raised by him, stating that no opportunity of cross-examination was provided to him, specially when the same was not requested, and there was no dispute regarding the veracity of the statement. (See also Union of India v. P.K. Roy43 and Channabasappa Basappa Happali v. State of Mysore 44.) In Transmission Corpn. of A.P. Ltd. v. Sri Rama Krishna Rice Mil45, this Court held: (SCC p. 80, para 9) "9. In order to establish that the cross-examination is necessary, the consumer has to make out a case for the same. Merely stating that the statement of an officer is being utilised for the purpose of adjudication would not be sufficient in all cases. If an application is made requesting for grant of an opportunity to cross-examine any official, the same has to be considered by the adjudicating authority who shall have to either grant the request or pass a reasoned order if he chooses to reject the application. In that event an adjudication being concluded, it shall be certainly open to the consumer to establish before the appellate authority as to how he has been prejudiced by the refusal to grant an opportunity to cross-examine any official." 28. The meaning of providing a reasonable opportunity to show cause against an action proposed to be taken by the Government, is that the government servant is afforded a reasonable opportunity to defend himself against the charges, on the basis of which an inquiry is held. The government to his guilt innocence. He can do so only when he is told what the charges against him are. He can, therefore, do so by cross- examining the witnesses produced against him. The object of supplying statements is that, the government servant will be able to refer to the previous statements of the witnesses proposed to be examined against him. Unless the said statements are provided to the government servant, he will not be able to conduct an effective and useful cross- examination. 29. In Rajiv Arora v. Union of India" this Court held: (SCC p. 310, paras 13-14) "13.... Effective cross-examination could have been done as regards c the correctness or otherwise of the report, if the contents of them were proved. The principles analogous to the provisions of the Evidence Act as also the principles of natural justice demand that the maker of the report should be examined, save and except in cases where the facts are admitted or the witnesses are not available for cross- examination or similar situation….. 14. The High Court in its impugned judgment proceeded to consider the issue on a technical plea, namely, no prejudice has been caused to the appellant by such non-examination. If the basic principles of law have not been complied with or there has 5 been a gross violation of the principles of natural justice, the High Court should have exercised its jurisdiction of judicial review." 30. The aforesaid discussion makes it evident that, not only should the opportunity of cross-examination be made available, but it should be one of effective cross-examination, so as to meet the requirement of the principles of natural justice. In the absence of such an opportunity, it cannot be held that the matter has been décided in accordance with law, as cross-examination is an integral part and parcel of the principles of natural justice.” 7. From perusal of the order sheet dated 17.02.2025, it transpires that an application was made by the junior counsel of the petitioner for cross- examining the witness who appeared there on that day on the ground that his senior counsel is not available for the reason he had gone to Delhi to appear in a case before the Hon’ble Supreme Court. The learned trial Court instead of fortifying the right to cross-examine the medical witness, should had granted another opportunity to cross-examine witness in the interest of justice and would decide the dispute between the parties fairly. 8. In the facts and circumstances of the present case and in the light of law laid down by Hon’ble Supreme Court in the matter of Ayub Khan (Supra), this Court is of the considered opinion that it would be appropriate to grant one opportunity to the petitioner accused to cross-examine the medical witness PW-5 Dr. Smt. S.P. Khan, therefore, the impugned order dated 17.02.2025 is set aside and the learned trial Court is granted one opportunity to the petitioner-accused to cross-examine witness PW-5, Smt. S. P. Khan and other witness, if any. 9. With the aforesaid observation, the petition is allowed. Sd/- (Ravindra Kumar Agrawal) Judge Alok