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2012 DIGILAW 2291 (DEL)

Balbir Singh @ Kalu v. State NCT of Delhi

2012-07-16

V.K.SHALI

body2012
JUDGMENT : V.K. Shali, J.— (ORAL) Crl. M.A. No.3962/2012 (for exemption) 1. Allowed, subject to all just exceptions. 2. The application stands disposed of. Crl. M.C. No.1126/2012 1. This is a petition under Section 482 Cr.P.C. assailing the order dated 25.2.2012 passed by the learned Additional Sessions Judge rejecting the application of the petitioner under Section 311 Cr.P.C. for recalling witnesses for cross-examination as well as for further cross-examination. 2. I have heard the learned counsel for the petitioner as well as the learned APP for the State and have also gone through the record. 3. The learned counsel for the petitioner has sought cross-examination of two sets of witnesses. The first set of witnesses consists of PW-1, Anil, brother of the deceased and PW-2, Surjeet, another eye-witness. The second set of witnesses consists of PW-7, Constable Kiran Pal, PW-8, Constable Ram Karan, PW-11, Head Constable Pirthi Singh, Duty Officer, who has proved FIR and PW-17, Head Constable Tek Ram, Moharar Malkhana, where the case property has been deposited. 4. So far as the first set of witnesses are concerned, they are sought to be cross-examined on the ground that the previous counsel who conducted the cross-examination had not cross-examined the witnesses with regard to the Naksha Mauka (site plan), which constitute an essential part of the entire trial in order to demolish the testimonies of the witnesses and, therefore, these two witnesses be recalled for further cross-examination on that score. 5. So far as the second set of witnesses is concerned, it is stated that although opportunity to cross-examine these four witnesses was given but as the counsel for the petitioner was busy in the High Court and could not appear before the learned trial court, the proxy counsel representing him did not cross-examine the witnesses and, therefore, this will also cause an irreparable loss to the petitioner. Accordingly, their recall has also been sought for cross-examination. 6. The learned APP for the State has vehemently opposed the application of the petitioner filed under Section 311 Cr.P.C. for recalling of the witnesses. So far as the first set of witnesses is concerned, namely, PW-1, Anil and PW-2, Surjeet, it is contended that a perusal of their statements would show that the cross-examination runs into 4-5 pages and they have been extensively cross-examined. So far as the first set of witnesses is concerned, namely, PW-1, Anil and PW-2, Surjeet, it is contended that a perusal of their statements would show that the cross-examination runs into 4-5 pages and they have been extensively cross-examined. Merely because questions with regard to the site plan have not been put by the previous counsel, would not constitute a ground for recalling them for cross-examination. If this is permitted to be done, apart from the fact that there will be no end to cross-examination, it will unnecessarily result in delay of the trial. Therefore, a request in this regard is being opposed. 7. As regards the other four witnesses, the learned APP for the State has contended that their testimony is more or less formal in nature and, therefore, their cross-examination is not required though, an opportunity to cross-examine the witnesses was given to the petitioner. 8. I have carefully considered the submissions made by the learned counsel for the parties and have gone through the order passed by the learned Single Judge of this court in Avtar Singh vs. State; Criminal M.C. No.1326/2010, where application of the petitioner for recalling of witnesses for cross-examination was allowed, subject to payment of cost. Needless to say that there is no dispute about the power of the court for recalling a witness for the purpose of cross-examination in an appropriate case. This can be permitted to be done, subject to payment of cost. However, merely because in the case which has been relied upon by the learned counsel for the petitioner, the witnesses were permitted to be cross-examined, subject to payment of cost, does not necessarily mean that in the instant case also such a right ought to be given to the petitioner. A perusal of the testimony of PW-1 and PW-2 clearly shows that they have been extensively cross-examined and both of them happen to be eye-witnesses. By filing an application for further cross-examination on the question of site plan, the petitioner is not only trying to now fill up the lacuna but is also trying to cause the delay in the final disposal of the case. This cannot be permitted to be done, nor the provision under Section 311 Cr.P.C. is meant for such an exercise. 9. This cannot be permitted to be done, nor the provision under Section 311 Cr.P.C. is meant for such an exercise. 9. As regards the other four witnesses, I agree with the contention of the learned APP for the State that their testimony is more or less formal in nature. Though, these formal witnesses were also made available to the petitioner for the purpose of cross-examination, which opportunity was not availed of. If these witnesses have not been cross-examined, the same has been done by the learned counsel for the petitioner at his own peril. It is not a case where an accused on account of indigency was prevented from engaging a counsel. On the contrary, this is a case where the accused /petitioner had engaged a counsel who is well versed in law and if such a counsel has chosen not to cross examine the witnesses, there must be some good reason for the same. 10. The petitioner should have been vigilant to file an application immediately after examination of the witnesses rather he has chosen to wait for more than a year and now when the trial is at the fag-end, he has suddenly woken up and has tried to reverse the trial. One of the reasons which results in delay in disposal of the cases is that the accused persons do not in the first instance cross examine the witnesses when their statements are recorded. Then after a time, an application would be filed for cross-examination of the witness by seeking his recall by giving one explanation or the other and the Courts are also over indulgent in obliging the accused persons. This practice has to be strictly curbed by disallowing the application unless and until some cogent ground is given. 11. For the above mentioned reasons, I am of the view that in the instant case, no sufficient ground has been shown by the petitioner for recalling of any set of witnesses as urged by him hereinabove. 12. Accordingly, the petition is misconceived and the same is dismissed. _____________