Research › Search › Judgment

Rajasthan High Court · body

2014 DIGILAW 1488 (RAJ)

Abdul Wasi (Dr. ) v. State of Rajasthan

2014-08-25

R.S.CHAUHAN

body2014
JUDGMENT 1. - In pursuance of the public notice issued by this court, Dr. Abdul Wasi, the petitioner No.1, and Mr. Vinay Chand Dhandia, the complainant-respondent, are present before this court. 2. The petitioners have challenged the order dated 25.9.2013 passed by the Additional Civil Judge (Jr. Div.) & Metropolitan Magistrate No.20, Jaipur Metropolitan by which the learned Magistrate had closed the petitioners' right to cross-examine the complainant-respondent, Vinay Chand Dhandia. 3. This case has had a rather chequered history. The petitioners are facing trial for offences under Sections 353, 380 IPC. During the course of trial, testimony of the complainant, Mr. Vinay Chand Dhandia, was recorded on 28.5.2012 as P.W.5. Subsequently, on 12.12.2012 the complainant moved an application before the learned trial court praying that the accused-petitioners should not be permitted to re-cross examine him. However, by order dated 30.1.2013 the said application was dismissed, inter alia on the ground that the cross-examination was incomplete on 31.10.2012 and the cross-examination was merely deferred on that day. Therefore, the accused-petitioners would have the right to cross-examine the complainant. Aggrieved by the order dated 30.1.2013, the complainant-respondent moved a Criminal Misc. Petition before this court. By order dated 10.4.2013, this court directed the learned trial court to permit cross-examination of the complainant on the next date. The learned trial court sent a letter dated 27.4.2013 to this court seeking an extension of time to cross-examine the complainant. By order dated 29.7.2013, this court directed the learned trial court to complete the cross-examination of the complainant on 5.8.2013. Again the learned trial court sent a letter dated 6.8.2013 to this court seeking an extension of time for cross-examination. By order dated 22.8.2013, this court granted one month's time to the learned trial court to complete the cross-examination of the complainant. The order dated 22.8.2013 was received by the learned trial court on 26.8.2013. Thereafter the case was fixed on various occasions for completing the cross-examination. However, despite giving twelve opportunities from 27.8.2013 till 25.8.2013, the complainant was not cross-examined by the counsel for the accused-petitioners. Therefore, by order dated 25.9.2013, the petitioners' right to cross-examination was closed by the learned trial court. Instead of challenging the order dated 25.9.2013, the petitioner merely moved an application before this court for extension of time for cross-examining the complainant. Therefore, by order dated 25.9.2013, the petitioners' right to cross-examination was closed by the learned trial court. Instead of challenging the order dated 25.9.2013, the petitioner merely moved an application before this court for extension of time for cross-examining the complainant. Since it was not brought to the notice of this court that right to cross-examination had already been closed by the learned trial court, by order dated 7.11.2013 this court extended the time limit to cross-examine the complainant by two months. Subsequently, the complainant filed an application before this court for recalling the order dated 7.11.2013 by pointing out to this court that the accused-petitioners have never challenged the order dated 25.9.2013, i.e. the order closing their right to cross-examination and have sought extension of time for cross-examining the complainant. By order dated 7.1.2014, this court recalled its earlier order dated 7.11.2013, inter alia, on the ground that the petitioners had suppressed a cardinal fact in regard to existence of the order dated 25.9.2013 and had secured the order dated 7.11.2013 through dubious means. Now, the present petition has been filed by the accused-petitioners challenging the order dated 25.9.2013. 4. Dr. Abdul Wasi, the petitioner No.1, pleads that in case opportunity to cross-examination is not granted, an injustice would be done to the petitioners. 5. On the other hand, Mr. Vinay Chand Dhandia, the complainant-respondent, pleads that the entire petition is hit by delay and latches. The petitioners, according to Mr. Dhandia, had ample time to challenge the order dated 25.9.2013. But instead of doing so, they merely moved an application for extension of time. Meanwhile, they suppressed the fact that an order dated 25.9.2013 had been passed by the learned trial court. It is only when their cleverness was discovered by this court that this court has recalled the order dated 7.11.2013, by order dated 7.1.2014. Therefore, according to Mr. Dhandia, the petition itself should be dismissed. 6. It is, indeed, trite to state that a party has to be vigilant with regard to his/her interests and rights. A party that sleeps over its rights cannot, subsequently, rush to the court and request that the impugned order should be set aside. The impugned order, in the present case, was passed on 25.9.2013. Even after passing of the impugned order, the petitioners had approached this court, but had failed to challenge the said order. A party that sleeps over its rights cannot, subsequently, rush to the court and request that the impugned order should be set aside. The impugned order, in the present case, was passed on 25.9.2013. Even after passing of the impugned order, the petitioners had approached this court, but had failed to challenge the said order. In fact, instead they suppressed the existence of the order dated 25.9.2013, hoodwinked the court and procured the order dated 7.11.2013. It is only when their cleverness was discovered by this court that this court had no other option but to recall the order dated 7.11.2013, by order dated 7.1.2014. 7. In order to undo the harm caused to their interests, now the petitioners have come before this court challenging the order dated 25.9.2013. However, they have approached this court after an inordinate delay. There is no explanation given by them for the inordinate delay of almost one year in challenging the said order especially when they had already moved this court on an earlier occasion. Therefore, the petitioners cannot be permitted to challenge the said order, to plug-in the loopholes left by them. To permit them to do so would also lead to the consequence of unravelling the orders dated 7.1.2014 and 7.11.2013. A party cannot be permitted to be too clever with the court under the guise that its interest would adversely be affected in case the order dated 25.9.2013 is not set aside. 8. Moreover, admittedly, after the order dated 22.8.2013 was passed by this court granting one month's time to the accused-petitioners to cross-examine the complainant, they wiled away the time, and still the learned trial court in its generosity granted them twelve opportunities to cross-examine the complainant. Merely because an accused may have a right to cross-examine does not mean that the trial court should wait endlessly for the accused to cross-examine the complainant. In the present case, since more than sufficient opportunities had been given to the accused-petitioners to cross-examine the complainant, this court does not find any illegality or perversity in the impugned order dated 25.9.2013.Seen from any angle, this petition is devoid of any merit. It is, hereby, dismissed. The stay application also stands dismissed.Petition dismissed. *******