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2012 DIGILAW 356 (PAT)

Ranjay Pandey v. State of Bihar

2012-02-28

BIRENDRA PRASAD VERMA

body2012
ORDER Heard learned counsel appearing on behalf of the petitioner and learned Additional Public prosecutor appearing on behalf of the State of Bihar. 2. The petitioner, an accused in Paharpur P. S. Case No. 62 of 2007 dated 14.06.2007, giving rise to Sessions Trial No. 356 of 2009, registered under Sessions 304B, 201/34 of the Indian Penal Code, has approached this Court by invoking the inherent powers under Section 482 of the Code of Criminal Procedure, 1973 with a prayer for quashing the order dated 22.11. 2011 passed by the learned 6th Additional Sessions Judge, East Champaran, Motihari in aforesaid Sessions Trial No. 356 of 2009 by which the prayer of the petitioner for recall of P.W. 6 Shri Pankaj Kumar Shrivastava, Sub-Inspector of Police, for further cross-examination, has been rejected. 3. It is submitted by learned counsel for the petitioner that though the petitioner is named in the F.I.R. vide Annexure-1 as an accused and on close of investigation charge sheet has been submitted against him, but he is not alleged to have participated in commission of actual crime. It is also contended that the petitioner is a co-villager of co-accused Niwas Pandey, the husband of the deceased. It has further been submitted that after framing of charge, the evidence of P.W.1 was recorded on 06.05.2010. After examination of P. Ws. 2, 3, 4 and 5, who all are family members of the deceased, on different dates, the recording of evidence of P.W. 6 Pankaj Kumar Shrivastava, the Sub-Inspector of Police, who is said to have taken over the charge of investigation on 01.08.2007 from the first Investigating Officer, namely, Shri Suresh Sharma (P.W.7) and submitted charge-sheet, commenced and concluded arbitrarily on 7th March 2011. Aforesaid P.W. 6 was examined- in-chief and was cross-examined on behalf of the accused persons before the lunch recess on 7th March 2011 and was required to be further cross-examined after the recess was over. However, learned counsel appearing on behalf of the accused petitioner became otherwise busy in a function organized by the Bar Association, therefore, he could not appear for further cross-examination of P.W. 6 after the lunch recess and as such petition for deferment of cross-examination of P.W.6 for another date was rejected and P.W. 6 was discharged on 07.03.2011 itself. However, learned counsel appearing on behalf of the accused petitioner became otherwise busy in a function organized by the Bar Association, therefore, he could not appear for further cross-examination of P.W. 6 after the lunch recess and as such petition for deferment of cross-examination of P.W.6 for another date was rejected and P.W. 6 was discharged on 07.03.2011 itself. In the aforesaid background, a petition dated 04.11.2011 was filed on behalf of the petitioner for recall of the aforesaid P.W. 6 for further cross-examination but, that has been rejected by the impugned order dated 22.11.2011 passed by the learned trial court. In support of his contention, learned counsel for the petitioner has placed reliance on a judgment of Rajasthan High Court in the case of Hazari Ram Vs. State of Rajasthan (1994 Criminal Law Journal 3758). 4. Learned Additional Public Prosecutor has stoutly opposed the prayer and has submitted that as a matter of fact, P.W. 7 Suresh Sharma is the first Investigating Officer, who after registration of the FIR (Annexure-1) conducted major part of investigation and thereafter handed over charge of investigation to P.W. 6 on 01.08.2007. It has been contended that P.W.7 was examined-in-chief on 28th March 2011 and was cross-examined. He was further cross- examined on 29.03.2011 and again on 08.07.2011. The prosecution evidence was finally closed on 28.09.2011 and thereafter case was fixed for recording statement of accused persons under Section 313 Cr. P.C. It was pointed out that though P.W. 6 was examined and cross-examined in part and was discharged on 07.03.2011, but no petition was filed on behalf of the petitioner or any other accused to recall him for further cross-examination till the prosecution evidence was closed on 28.09.2011. After close of evidence, a belated petition was filed on 04.11.2011 purportedly under Section 311 Cr. P.C. for recall of P.W. 6 for further cross-examination and the same has rightly been rejected by the learned trial court by the impugned order. 5. After having heard the parties at length and on consideration of all the materials available on record including the deposition of witnesses, certified copy of which was produced for perusal of the Court, it is apparent that after registration of the F.I.R. (Annexure-1), investigation was immediately taken up by P.W. 7, the first Investigating Officer. Major part of the investigation appears to have been conducted by P.W. 7. Major part of the investigation appears to have been conducted by P.W. 7. He has been examined-in-chief and was cross-examined at length on behalf of the accused on three different dates. P.W. 6 appears to have taken up the investigation at its fag end and finally submitted charge-sheet. Furthermore, P.W. 6 was examined and was cross-examined in part on 07.03.2011. Even if he was not further cross-examined, no prejudice appears to have been caused to the petitioner. If the petitioner was at all aggrieved and wanted to further cross-examine P.W. 6, then he ought to have filed petition at the earliest point of time, but admittedly that has not been done. Thereafter, evidence of other witnesses was allowed to be recorded including that of P.W. 7, the main Investigating Officer, and finally prosecution evidence was allowed to be closed on 28.09.2011. If the petitioner or other accused persons wanted to elicit suppressed facts and wanted to expose the discrepancies in the prosecution case, then they had all the chances to do the same while cross-examining the P.W.7, the first Investigating Officer. For more than six months, the petitioner did not file any petition for recall of P.W.6 for further cross-examination. This goes to show that as a matter of fact, the petitioner was not prejudiced by not cross-examining further and would not be prejudiced by not recalling P.W. 6 for further cross-examination. Belated petition dated 04.11.2011 filed on behalf of the petitioner, appears to have been filed with a calculated move to deliberately delay the disposal of the criminal trial, as admittedly the case was fixed on 17.10.2011 for recording statement of accused persons under Section 313 Cr. P. C. 6. There cannot be any dispute with the proposition of law laid down in the case of Hazari Ram Vs. State of Rajasthan (supra) that the accused has a right to cross-examine the witnesses to elicit the suppressed facts and to impeach the credibility and the value of the evidence given by the witnesses. It is also equally true that accused has no right to seek postponement or deferment of cross-examination of a prosecution witness at his own sweet will to suit his convenience. Normally, the cross-examination must follow the examination-in-chief and if not concluded on the same day, then that may continue on the next date fixed by the trial court. It is also equally true that accused has no right to seek postponement or deferment of cross-examination of a prosecution witness at his own sweet will to suit his convenience. Normally, the cross-examination must follow the examination-in-chief and if not concluded on the same day, then that may continue on the next date fixed by the trial court. A witness can be recalled by the court in exercise of its power under Section 311 Cr. P. C. only when the court comes to a finding that evidence of such witness was essential for the just decision of the case. Though power under Section 311 Cr. P.C. is very wide, but that must be exercised judiciously and not mechanically. Determinative factor for exercise of power under Section 311 Cr. P. C. is whether it is essential for the just decision of the case. Present is not a case of that category and, therefore, ratio laid down in the case of Hazari Ram Vs. State of Rajasthan (supra) cannot be applied in the facts and circumstances of the present case. 7. For the reasons recorded above, I find no legal infirmity in the order impugned passed by the learned trial court. Consequently the application fails and it is, accordingly, dismissed. 8. However, it is clarified that the observations made in the present order is only for the purposes of disposal of the present proceeding and shall not in any manner adversely affect the case of the parties for the purposes of the disposal of the criminal trial pending in the court below.