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2012 DIGILAW 210 (HP)

Ashok Kumar Sharma v. State of Himachal Pradesh

2012-04-20

V.K.SHARMA

body2012
JUDGEMENT V.K. Sharma, Judge (Oral). Cr.M.Ps. No. 310 in Cr. MMO No. 204 of 2011, 311 in Cr.MMO No. 205 of 2011 and 312 of 2012 in Cr.MMO No. 206 of 2011.Replies not to be filed.Heard. The applications are allowed and the status reports filed therewith are ordered to be taken on record.The applications stand disposed of.Cr. MMO No. 204 of 2011 alongwith Cr.MMOs No. 205 & 206 of 2011. Since all these petitions under Section 482 of the Code of Criminal Procedure (in short ‘Cr.P.C.’) read with Article 227 of the Constitution of India raise identical questions of facts and law, the same are taken together for disposal by a common judgment. 2.Being aggrieved by the impugned order(s) dated 17.10.2011, which are like in nature, the petitioner (accused) is in revision before this court. 3. Shorn of details relevant facts for disposal of the present petition(s) are that FIR No. 17 of 1997 was registered against the accused in Police Station, Enforcement, South Zone, Shimla on 27.11.1997, followed by FIR No. 18 of 1998, dated 21 .8.1998, out of which five cases being 7-S, 8-S, 9-S, 10-S and 11-S were submitted by the police to the court for trial under Sections 420, 409, 468, 478, 218, 109 and 120-B of the Indian Penal Code (in short ‘IPC’) and Section 13(2) of the Prevention of Corruption Act, 1988 (in short ‘the PC Act’) in the year 2006. For the present controversy we are concerned with cases No. 9-S, 10-S and 11-S as admittedly, the other two cases have already resulted in conviction of the accused. However, charges could be framed against the accused only in the year 2009 as in the interregnum the matter was carried in revision to this court at his instance. The prosecution evidence was over in the year 2011. Thereafter, the accused was examined under Section 313 Cr.P.C. 4. The controversy giving rise to the filing of the present petitions arise when the turn of the accused came to lead evidence in defence. Whereas the accused intended to examine as many as eighteen witnesses in defence as per list submitted by him, the learned trial court permitted him to examine only one, namely, Joint Controller (F&A), HPPCB, New Shimla and permission to examine rest of the witnesses has been declined mainly on the ground that it is a device to delay the proceedings. Whereas the accused intended to examine as many as eighteen witnesses in defence as per list submitted by him, the learned trial court permitted him to examine only one, namely, Joint Controller (F&A), HPPCB, New Shimla and permission to examine rest of the witnesses has been declined mainly on the ground that it is a device to delay the proceedings. 5.I have heard the learned counsel for the accused, the learned Deputy Advocate General for the respondent-State and gone through the records. 6. It is a cardinal principle of criminal jurisprudence that the accused has an inherent right to rebut the evidence led by the prosecution by leading evidence in defence including examining himself as his own witness. This right cannot be curtailed or restricted only on the ground that it would delay in disposal of the case and more so when in a particular case the prosecution has examined large number of witnesses and adduced voluminous documentary evidence. 7. Against the foregoing background, in order to obviate the possibility of the trial being delayed, the accused has been asked through his learned counsel to state as to out of the remaining seventeen witnesses cited by him, which are the witnesses, who are absolutely necessary to be examined in his defence and in response it is stated that out of the remaining seventeen witnesses those mentioned at Sr. Nos. 1,2,4,5,6,9,11,12,14,16 and 18, namely, Mr. O.P. Yadava, Mr. S.K. Sood, Mr. Ishwer Singh, Mr. Kulwant Singh, Mr. D.K. Sharma, Dr. Madhu Bala Soni, S.P. (Vigilance/Enforcement), Dr. A.B. Akolkar, Mr. L.C. Sharma, Mr. Mohinder Krishan Sharma and Mr. Ashok Sharma (accused) are absolutely necessary and the remaining six mentioned at Sr. Nos. 3,7,8,10,15 and 17, namely, Mr. S.S. Juneja, Mrs. Daksha Gupta, Mr. S.K. Latawa, Dr. Harish Sharma, Secretary, Vidhan Sabha and Mr. A.L. Khosla can be given up. In order to avoid any possibility of the trial being delayed, it can also be ordered that the defence witnesses shall be summoned both through ordinary process as also dasti. 8.In view of the above, the petitions are allowed with a direction to the learned trial court to permit the accused to examine the aforesaid remaining eleven witnesses ( Sr. Nos. 1,2,4,5,6,9,11,12,14,16 and 18 whose names have been specified hereinabove) in defence in accordance with law. 8.In view of the above, the petitions are allowed with a direction to the learned trial court to permit the accused to examine the aforesaid remaining eleven witnesses ( Sr. Nos. 1,2,4,5,6,9,11,12,14,16 and 18 whose names have been specified hereinabove) in defence in accordance with law. In addition to summons through ordinary process, dasti summons shall also be made available to the accused to serve the same upon the concerned witnesses. Though ordinarily expenses of defence witnesses are to be borne by the State, yet in the peculiar facts and circumstances of the present case and in view of the undertaking given by the accused through his learned counsel during the course of hearing of these petitions, whereas expenses of the local witnesses stationed in Shimla shall be borne by the State, the expenses of witnesses residing outside Shimla shall be defrayed by the accused. 9. Further in order to exclude the possibility of the trial being delayed, it is directed that the accused shall make every possible endeavour to serve the witnesses dasti and in case it is found at any stage that the accused is making any deliberate attempt to delay the trial except beyond his control, the learned trial court shall take corrective measures as permissible under law. 10. The petitions, as also pending Cr.M.Ps., if any stand disposed of in the above terms.