On 17th September, a bench of Delhi High Court consisting of Justice Yogesh Khanna held that to appreciate the concern of the petitioner, one needs to see as to what is the cause for the petitioner to move this application under Section 311 Cr P C. However, the power under Section 311 Cr PC is to be exercised for strong and valid reasons.

Facts of the case:

The present petition was filed by the petitioner challenging the impugned order dated 02.09.2021 passed by the learned Trial Court in case FIR No.207/2016 registered at police station Tilak Marg titled State vs Dinesh Chand Sharma whereby an application of the petitioner under Section 311 Criminal Procedure Code was dismissed. learned counsel Mr.Siddharth Kashyap had chosen not to cross examine the said witness despite an opportunity being granted to him; but thereafter new counsel was appointed and after going through the record, he was of the view cross examination of PW38 is necessary, hence an application under Section 311 Cr P C was filed. Such application of the petitioner was dismissed by the learned Trial Court.

Contention of the petitioner:

The following contention has been submitted by the petitioner:

  1. It was submitted that if the petitioner is allowed to cross examine PW38, it shall not cause any prejudice to the prosecution.
  2. It was further argued that PW38 is a material witness as various documents relating to the petitioner were seized by him and even otherwise it is the duty casted upon the Court to safeguard the accused and allow him to examine and cross-examine the witnesses per Section 165 of the Indian Evidence Act.
  3. It is submitted there are charges of conspiracy against the petitioner besides other offence and he needs to rebut such charges by cross examining this witness.

Contention of the State:

The learned senior counsel for the State submitted the following:

  1. It was submitted that the argument of the petitioner is nothing but a ploy to further delay the matter.
  2. It was also argued that PW38 was examined in detail and his examination rather continued for 15 months running into 27 pages. He was cross examined by each accused except the present petitioner, to whom also an opportunity was granted, but his learned counsel Mr.Siddharth Kashyap made a conscious decision by choosing not to cross examine PW38.

Observation and judgment of the court:

The following observation has been made by the hon’ble bench of the court:

  1. The petitioner has filed an application to cross-examine the Investigating Officer on specific allegations of conspiracy by putting certain suggestions and to bring his attention to various material in the forms of statements under Section 161 Cr PC recorded by the main Investigating Officer and towards various necessary documents to be collected or deliberately omitted from being placed on record.
  2. PW38 on the basis of documents filed/seized by him never considered the petitioner an accused and probably of this reason, the erstwhile counsel did not prefer to cross examine him. It appeared to be a conscious decision of the learned counsel for the petitioner.

Based on the above the court held that a mere change of counsel would not suffice to recall witness to put certain suggestions in the manner, the new counsel desires. Thus, the petition being devoid of merits is was dismissed.

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