Satyadeen @ Ram Singh vs State (Nct Of Delhi)
2002 Latest Caselaw 1976 Del

JUDGMENT

Mahmood Ali Khan, J.

1. This petition under Section 482 of Cr.P.C. is filed challenging an order of the Additional Sessions Judge dated 17.1.2001 whereby he has dismissed the criminal revision filed by the petitioner against an order of a Metropolitan Magistrate who had dismissed the application of the petitioner filed under Section 311 of Cr.P.C. and had declined to recall three PWs : PW 1 Naval Kishore Joshi, PW 2 Mrs. Devki and PW 3 Mr. N.K. Banerjee.

2. Briefly stated the facts are that a case was registered against the petitioner Satyadeen @ Ram Singh and others for offence under Sections 419/468/420/471 read with Section 34, IPC on the complaint of one Naval Kishore Joshi. It was alleged that these accused in complicity of each other hand cheated the complainant of Rs. 2,48,000/- on the pretext of sale of a plot of land measuring 400 sq. yds. to him in Ashok Nagar. The charge-sheet was submitted in the Court in January, 1991. Since then the case lingered on and ultimately the statement of the complainant Naval Kishore Joshi, PW 1 was recorded on 6.1.1997. Statement of PW 2 Mrs. Devika and N.K. Banerjee PW 3 was also recorded on the same date. Thereafter on different dates eight more witnesses were examined. Prosecution evidence concluded on 28.7.1999. Statement of the accused was then recorded on 3.12.1999. The case thereafter was posted for defense evidence of the accused person, The accused took adjournment for one reason or the other. At last their evidence was closed on 29.9.2001. The case is now pending for hearing of final arguments. In the meantime the accused petitioner submitted an application for recalling of three witnesses PW 1 to PW 3 for cross-examination by his Counsel on the ground that his Counsel did not cross-examine them when they were produced by the prosecution and that the Trial Court ought to have allowed his request for cross-examination as trial without grant of opportunity of cross-examination of witnesses to the petitioner or without an appointment of a defense Counsel for him at State expenses, if he did not have one, was vitiated.

3. During the course of argument, it was stated that Counsel for petitioner could not cross-examine three PWs--PW1 to PW 3 when they had entered the witness box. The petitioner appointed the present Counsel and then it transpired that the cross-examination of these witnesses was necessary and that the previous Counsel had not cross-examined the witnesses and that it would cause great prejudice to the defense of the accused. Application under Section 311, Cr.P.C. was filed on 21.9.2001. It was dismissed by the Trial Court. Revision against it also met with the same fate.

4. Petitioner is dis-satisfied and has filed the present petition.

5. Counsel for petitioner has not disputed that the alleged offence was committed in 1989 and the charge-sheet was filed in 1991. Statement of the witnesses was recorded in September, 1997. The witnesses were also cross-examined on behalf of one of the accused. Opportunity was granted to the other accused who did not cross-examine the witnesses. It has also not been denied that the statement of the remaining eight witnesses was thereafter recorded. Statement of the accused was also recorded. Case was posted for recording of evidence in defense. It remained pending for sometime. Thereafter the application under Section 311, Cr.P.C. was filed for recalling three witnesses and grant of another opportunity for cross-examining them.

6. In ground 'E' of the petition it is alleged that the Courts below committed great impropriety and illegality by not considering that fact that the petitioner brought to the notice of the Court non-examination of the witness on his behalf on the first opportunity on coming to know "that none of the prosecution witnesses have been cross-examined on his behalf by the previous Counsel". It is evident from this averment that the petitioner had engaged an Advocate for defending him in this case. It is not a case that the petitioner accused on account of his indigency or poor financial resources was unable to engage a Counsel of his choice and the Court proceeded with the trial of the case without discharging its legal obligation to ensure that the accused was represented by a lawyer and the failure to appoint a defense Counsel for the petitioner trial has vitiated for non-compliance of the law laid down by Supreme Court in Suk Das and Anr. v. Union Territory of Arunachal Pradhesh, .

7. Petitioner has filed copy of the order-sheet right from the beginning which showed that the case was being adjourned mostly for the reason attributable to the accused persons. The petitioner in whose presence the witness was cross-examined by the Counsel for the co-accused was given opportunity to cross-examine the witnesses but the Counsel for petitioner had not cross-examined them. Excepting that his Counsel had not cross-examined the witnesses at the appropriate time, no other reason has been given why they were not cross-examined since the co-accused have cross-examined them. It seems that after the cross-examination of witnesses by Counsel for co-accused the accused did not feel it necessary to further cross-examine them. Even now it has not been stated on what point the petitioner wanted to cross-examine these witnesses which are not already covered by the cross-examination of the co-accused.

8. Application was submitted under Section 311, Cr.P.C. It gives wide discretion and mandate to the Trial Court to allow additional evidence or recall of a witness for just decision of a case. The application indeed could be filed at any stage of the trial till the case is finally disposed of. The Court is empowered to summon any person as a witness, examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case. This provision gives wide discretion and also imposes an obligation on the Court to allow additional evidence as aforesaid if exigencies of justice so required. However, in the guise of additional evidence the Court would not permit prosecution or the accused to fill in lacuna or gap left in the case. The power has to be exercised sparingly only when the ends of justice so demanded. It cannot be allowed to give an undue advantage to a party who wants to invoke the jurisdiction of the Court for some mala-fide or ulterior reasons (See: Mohanlal Shamji Soni v. Union of India and Anr., 1991 Cr.LJ. 1521.

9. In the instant case the witnesses PW 1 to PW 3 have been cross-examined but by Counsel for one of the accused in September, 1997. No good or plausible reason has been given by the petitioner for not cross-examined these witnesses at that stage. Evidence of eight more witnesses has since been recorded. Petitioner does not want to recall all these witnesses who have not been cross-examined but wants to recall only three witnesses. His statement was recorded in December, 1999. Thereafter the case remained pending for defense evidence and dates were taken for producing evidence even after the present Counsel of the petitioner accused was engaged and was conducting the case. Evidence of defense was not produced. It seems that the petitioner was only interested in prolonging the proceedings. The Trial Court had to close his defense evidence. Application under Section 311, Cr.P.C. is also seems to be in the direction of prolonging the case further. The case which was received in the Court in January, 1991 has still not been decided even after almost 12 years. The application seems to have been filed for causing further delay in the disposal. The recall of the 3 PWs does not seem necessary for just and fair decision of the case.

Having regard to the above discussion, the petition has no merit. It is dismissed.