M.L. Tahaliyani, J.@mdashHeard. Admit.
2. Heard finally by consent.
3. The learned trial Magistrate has passed cryptic order rejecting the application for adjournment and thereafter has closed cross examination of witness No. 1 on behalf of non-applicant viz. Mrs. Veena @ Kanchan Shankar Chandwani. The applicant is husband of Non-applicant No. 1 Mrs. Veena and father of non-applicant No. 2 Mast. Anshul. The non-applicants have filed application u/s 125 of the Code of Criminal Procedure. An affidavit of evidence of non-applicant No. 1 Mrs. Veena was filed. The learned counsel for the applicant was absent. The learned counsel was to come from Washim. The local lawyer Mr. P.T. Tolani made an application for grant of adjournment. The said application has been rejected by passing following order on 13.08.2012.
The reasons are not satisfactory. Hence rejected.
Immediately thereafter the learned trial Magistrate passed the following order.
The counsel for NA present. I have rejected the adjournment Application vide Exh. 14. The permission was granted to cross examine the applicant. The counsel for N.A. Submits that he is unable to cross-examine the applicant. Hence case proceeds further without cross of applicant.
From both the orders it appears that the learned Magistrate was unhappy due to absence of the counsel for the applicant. No doubt, when the matters are fixed for recording of evidence, the judicial officers concerned expect the lawyers of both the parties to remain present so that the evidence is recorded and witness do not go back without recording of the evidence. Judicial officers are anxious to see that the witness should not be required to attend the Court repeatedly. This Court shares the anxiety of the learned Magistrate. However, at the same time judicial officer concerned has to take care of the inconvenience and difficulties of the lawyers also. A proper balance is to be struck between interest of the justice and convenience of the lawyers. No order should sound like capricious one. This is always to be borne in mind by all the judicial officers. With this observation I have come to a conclusion that the order dated 13th August, 2012 needs to be set aside. Hence, I pass the following order.
i) The application is allowed.
ii) Order dated 13th August, 2012 directing closure of the evidence of Witness No. 1 Mrs. Veena is set aside.
iii) The applicant shall be given opportunity to cross-examine the witness.
iv) The learned counsel for the applicant shall remain present before the trial Court for cross-examination of witness Mrs. Veena on next date of hearing and cross-examine the witness on the same day or shall request the Court to fix a date for cross-examination of the witness Mrs. Veena.
The application stands disposed of accordingly.
