Khem Singh & Ors v. State

ORDER %

08.11.2011 Crl.M.A. 17421/2011 Tearlv hearing) Dismissed as infructuous. Crl.M.C. No.2273/2011 & Crl.M.A. No.8384/2011

(stay)

¶1By the presentpetition,the Petitionersseek setting aside of orders dated 24^^ May, 2010 and lO^*" January, 2011 passed by the learned MetropolitanMagistrate and 5^^ February, 2011 passed by the learned Additional Sessions Judge, Delhi. The Petitioners further seek to recall PWl Smt. Rajni and PW2 Shri Sri Chandfor cross-examination.

¶2Learned counsel for the Petitioners contends that the learned Courts have denied them the valuable right of cross-examinationof the two most Crl.M.C. 2273/2011 Page No. 1 of 7 Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. material witnesses, which would cause great prejudiceto the Petitioners: The learned MetropolitanMagistratehad erroneouslyclosed the right to cross-examinePWl Rajni, who is the complainantin FIR No. 375/2000 registeredagainstthe Petitionersherein. PWl Rajni was partlyexaminedon 29'^ September, 2009 and partly on 2"^* March, 2010. The case was adjournedfor 24^^ May, 2010 on which date the learnedMagistrateclosed the right to cross examine the witness in the absence of counsel for the '^Petitioner. This fact was not withinthe knowledgeofthe Petitionertill 28'^ September,2010. ThereafterPW2 was producedon 28"" September,2010 for his cross-examination on which date learned counsel for the Petitioner came to know aboutthe orderdated 24'^ May, 2010. Learnedcounselfiled an applicationunder Section 311 Cr.P.C. for recallingof witness but the same was declinedand vide order dated 10^^ January, 2010 right to cross-examine of PW2 was also closed by the learned MetropolitanMagistrate. These orders were challengedbeforethe learnedAdditionalSessionsJudge which petition of the Petitionerwas dismissedby the learned Additional Sessionsjudgevide orderdated 5'" February,2011 withoutappreciatingthe facts of the case and ignoring the fact that non-cross-examinationof the materialwitnesseswouldcauseseriousprejudiceto the Petitioner. Thus,the impugnedorderspassedby the learnedMetropolitanMagistrateand learned Cr/.MC. 2273/2011 Page No. 2 of 7 AdditionalSessionsJudge are erroneousin law as well as on facts and are liable to be set aside.

¶3Per contra learned APP for the State contendsthat there is no illegality in the impugnedordersas the Petitionerswere grantedsufficientopportunity to cross-examine the witnesses. It was a deliberate act on the part of Petitioners/accusedto delaythe cross-examinationto delaythe proceedings. Hencethe presentpetitionis devoidofmeritand is liableto be dismissed. I have heard learned counsel for the parties. Petitioner No.l Khem Chand was married to PWl Rajni. In the year 2000, PWl Rajni filed a complaint being FIR No. 375/2000 at PS Karol Bagh under Section 406/498AIPG againstthe Petitioner. The Petitionerherein filed a petition for dissolution of marriage which was dismissed by the learned Addl. DistrictJudge.The Petitionerappealedagainstthe saidorderwhichappealis still pending. Pursuant to charges being framed the case was fixed for " prosecutionevidence.On 19^'' January,2004, the learnedPresidingOfficer was on leaveand the matterwas adjourned. Thereafteron 2?"^ August,2004 PWl Smt. Rajni filed an apphcationunder Section 294/311 Cr.P.C. for placing certain documents on record, which was allowed by the learned Court vide order dated 31'' July, 2006. In the year 2006, the prosecution started to examine its witnesses. Examination-in-chief of PWl and PW2 CrlMC. 2273/2011 Page No. 3 of 7 was conductedon 14'^ March, 2007 despitethe requestof learned counsel for the Petitioner for adjournment of the matter as he was held up. Thereafter,on 20"" January, 2009, the learned Link Magistrateconducted examination-in-Chiefof PW4 and as PWl the complainanthad not brought the case property,she was directedto bringthe same on May, 2009. On this date, the Petitionerbeinga Governmentemployeewas on electionduty and an exemptionapplicationwas filed on his behalfwhichwas allowedby ''^the trial Court and matterwas adjournedfor 20'*^ July, 2009. Due to some personaldifficultythe petitionercould not attendthe Court and the matter was adjournedto 29'^ September,2009, on this date PWl was partlycross-examined. As PWl had not broughther passbook,the cross-examination was deferreddirectingthe PWl to bringthe passbookon the next date. On the next date of hearing,the PresidingOfficerwas holdingplea bargaining Court and the matterwas once again adjournedfor 2"^^ March, 2010. PWl ' was cross-examined on this date but due to ill-health of learned counsel for the Petitioner, the examination could not be concluded and cross-examinationof PWl was deferred. On 24''^ May, 2010 when the matterwas listed, accused No.2 was hospitalizedand an exemption applicationwas movedand allowedby the learnedTrialCourt. On the same day, the learned Trial Court also closedthe right of the Petitionersto further cross-examine Cr/.MC. 2273/2011 Page No. 4 of 7 PWl as the counselwas not available.Thus, due to the repeated absenceof the learned counsel for the Petitioner, the right to cross-examine PWl was closed.

¶5Thereafteron 28^'' September, 2010 when PW2 was produced for cross-examination,learnedcounselfor thePetitionerleamtaboutthe closure ofhis rightto cross-examinePWl vide orderdated 24^^ May, 2010. On the next date of hearinghe filed an applicationunder Section311 Cr.P.C. for ^settingaside oforderdated 24^^ May, 2010 and recallingofPWl for cross-examination. This applicationof the Petitionerwas kept pending for the next date. On 22"'^ December, 2010 PW Brahm Dutt was present but was dischargedunexaminedas the case property was not summoned and the matter was adjournedto next date subjectto costs. Vide order dated lO"^ January, 2011 the learned Trial Court dismissed the application of the Petitionerfor recallingof PWl and also closed his right to cross-examine PW2 observingthat the learnedcounsel for Petitionerstatedthat he would like to cross-examinePW2 only if his applicationunder Section 311 Cr.P.C. is allowed.

¶6It would be relevant to note that since 2004 the Petitioner has been diligently attending the Court on all the dates and it was only on two occasions when he could not cross-examine the witness, the learned Trial CrlM.C. 2273/2011 Page No. 5 of 7 4) Court closed his right to cross-examinethe witness. Also the application filed under Section 311 Cr.P.C. has been dismissed and the Court of Revisiondismissedits petitionin limine. Thus, a perusalof the impugned orders show that the Petitioner herein has not been granted sufficient opportunity to cross-examine the material witnesses. Right to cross-examine is a valuableright which cannot be taken away without granting sufficientopportunityto the accused. "7. Hon'bleSupremeCourtin in ZahiraHabibullahSheikhandAnother Vs. StateofGujaratand Others(2006)3 SCC374 held: "The sectionis manifestlyin two parts. Whereasthe wordused in the first part is "may", the second part uses "shall". In consequences,the first part givespurelydiscretionaryauthority to a Criminal Court and enables it at any stage of an enquiry, trial or proceeding under the Code (a) to summon anyone as a witness,or (b)to examineany personpresentin Court,or (c)to recall and re-examine any person whose evidence has already been recorded. On the other hand, the second part is mandatory and compelsthe Courtto take any of the aforementionedsteps if the newevidenceappearsto it essentialto thejust decisionof the case. This is a supplementaryprovisionenabling, and in certain circumstances imposing on the Court the duty of examining a material witness who would not be otherwise broughtbeforeit. It is couchedinthewidestpossibleterms and calls for no limitation, either with regard to the stage at which the powers of the Court shouldbe exercised,or with regardto the manner in which it should be exercised. It is not only the prerogativebut also the plain duty of a Court to examinesuch of those witnesses as it considers absolutely necessary for doing justicebetweenthe State and the subject. There is a duty cast uponthe Courtto arriveatthe truthby all lawfulmeansand one CrlMC. 2273/2011 Page No. 6 of 7 of suchmeansis theexaminationofwitnessesof its own accord when for certainobviousreasonseither partyis not preparedto call witnesses who are known to be in a position to speak importantrelevant facts."

¶8Thus,keepingin viewthe facts and circumstancesofthe case,I deem it fit to grantone more opportunityto the Petitionershereinto cross-examine PWl and PW2. The impugnedordersare set aside. The learnedTrial Court is thus directedto summonPWl and PW2 with advance intimationto the Petitioners and grant them one opportunity to cross-examine the two r~ witnesses. Petition stands disposed of. ^MUKTA GUPTA,J NOVEMBER 08, 2011 Vkm CrlMC. 2273/2011 Page No. 7of 7

$-26 * IN THE HIGH COURT OF DELHI AT NEW DELHI + CRL.M.C. 2273/2011 KHEM SINGH & ORS. Petitioners Through Dr. N.K. Khetrapal,Adv. versus STATE Respondents Through Mr. Mukesh Gupta, APP with ASI Dharamvir Singh, CAW Cell CORAM: HON'BLE MS. JUSTICE MUKTA GUPTA