Vinay Kumar S/O Shri Om Prakash And ... vs State Through Sho
2007 Latest Caselaw 1609 Del

JUDGMENT

V.B. Gupta, J.

1. By way of present petition under Section 482 of Cr.P.C., the petitioner had challenged impugned order dated 16th May, 2007 passed by Ms. Reena Singh, Additional Sessions Judge vide which the right of the petitioners to cross-examine PW2 and PW3 was closed and order dated 19th July, 2007 vide which she dismissed the application of the petitioners under Section 311 Cr.P.C. to recall order dated 16th May, 2007.

2. Present petitioners are facing trial under Section 498A/304B/34 IPC and alternatively for offence under Section 306/34 IPC.

3. PW2 Amit Kumar Jain is the brother of deceased whereas PW3, Virender Kumar is her father.

4. Since 22nd July, 2004, PW2 and PW3 have been appearing in the trial court time and again for their statements. On many occasions, as the record would reveal, adjournments have been sought on behalf of accused and their counsel. It would be pertinent to mention that these two witnesses are resident of Badpat (U.P.).

5. Order dated 16th May, 2007, gives the complete background of this case as to what happened from the very first date of prosecution evidence and how many opportunities have been granted by the court to the accused/their counsel to cross-examine PW2 and PW3. The relevant portion of order reads as under:

16.5.2007/ 11am

Present: Ld. Adl. PP for the State.

All accused on bail.

PW Amit Kumar Jain and PW Virender Kumar are present. Ld. defense counsel has not turned up. PW Virender Kumar states that he is cancer patient, aged about 60 years and is also suffering from heart ailment and he would not be in position to stay back long in the court due to his ailment and his son Amit Kumar has brought him today in the court. Accused persons state that their counsel would come at 11.30 am. In the interest of justice, be awaited for defense counsel.

ASJ; KKD; 16.5.2007

At 11.30 am

Present: As before.

Ld. defense counsel has not turned up. As prayed, put up at 12 noon.

ASJ; KKD; 16.5.2007

At 12.10 pm

Present: As before.

Ld. defense counsel is not present. On 23.5.2006, an application Under Section 311 Cr.P.C. for recalling of PW Amit Kumar was allowed subject to giving only one opportunity. However, despite keeping the case pending since morning, ld. Counsel has not turned up for cross-examination of this witness. Moreover, PW Virender Kumar is an ailing person. Record reflects that charge in this case was framed on 25.5.2004. On different dates of PE in this case, the case travelled as under:

On 22.7.2004 Amit Kumar was present, but date was sought as his father was ill. Case was posted for PE on 1.9.2004. 1.9.2004 was declared holiday, so on 2.9.2004 case was posted on 7.10.2004. On 7.10.2004 PW Amit and Virender were present, but on their request due to illness of Virender, case was posted for PE on 17.11.2004. On 17.11.2004 PW2 was examined in chief. His cross-examination was deferred as defense counsel was not available. Due to absence of ld. defense counsel even PW Virender Kumar was not examined. On the next date i.e. on 12.1.2005 no PW was present. On 21.2.2005 ld. defense counsel was not present so both Amit and Virender were discharged unexamined. On 6.4.2005 again both the above PWs were not examined as ld. defense counsel Sh. Sethi was not available. On next date i.e. 18.5.2005 again both the PWs were discharged due to non availability of defense counsel. On next date i.e. 27.7.05 both these witnesses were again present but ld. defense counsel Sh. Jashvir Sethi was not available. Hence witnesses were again discharged unexamined. On next date i.e. 21.9.05 on the request of ld. defense counsel Sh. Sethi both the witnesses were again not examined. On next date i.e. 16.11.05 these PWs were not present. On 16.2.06 ld. defense counsel prayed for passing over for examination of witness Amit and Virender as he had to attend the bail matter, but PW Virender Kumar Jain due to his illness left the court without seeking permission. However, PW2 Amit Kumar was partly cross examined. On 31.3.06, Presiding Office was on leave on which date PW Amit and Virender were present. It may be mentioned that on 20.5.06 also counsel was not present and prayer for adjournment was declined and Amit Jain was cross examined giving opportunity to accused persons. On 23.5.06 on the application of the accused for recalling of PW Amit, same was allowed subject to only one opp. On 6.9.2006 date for PE, PW Amit and Virender were present, but could not be examined before lunch as court was busy in bail matters and after lunch, ld. defense counsel was not available due to death of father of his friend. On 22.11.06 PW3 Virender was partly examined in chief. His cross-examination was deferred on the request of ld. defense counsel subject to only one opportunity. On next date i.e. 27.1.07 PW Amit prayed for adjournment to attend to his ailing father. On next date i.e. 28.3.07 the court was on leave and 16.5.07 is today but ld. defense counsel is not available despite waiting for him for sufficient time. The record thus reflects that recording of evidence of even ailing PW of aged 60 years is being delayed which is attributable to accused persons. In these circumstances, opportunity to cross-examine these witnesses has been given to accused persons and thereafter both the witnesses are discharged.

ASJ; KKD; 16.5.07

6. The record shows that so many times these witnesses had come to the Court and they have to undergo suffering and agony at the hands of the accused/their counsel.

7. As per record, on 23rd May, 2006, application of petitioner for recalling PW Amit Kumar Jain was allowed subject to payment of costs.

8. On 6th September, 2006, PW2 and PW3 were present, but the counsel for accused did not appear and as such the case was adjourned to 22nd November, 2006. On that day, PW3 was partly examined but cross-examination was again deferred, at the request of counsel for the petitioners.

9. On 16th May, 2007, PW2 and PW3 were again present but counsel for petitioners did not turn up and vide impugned order, the Judge gave opportunity to the accused persons to cross-examine the witnesses.

10. Thereafter, petitioner No. 1 moved an application for recall of PW2 and PW3 for further examination and vide impugned order dated 19th July, 2007, the Ld. Additional Sessions Judge dismissed that application holding that PW2 has been cross-examined partly by defense counsel which is running over in six pages and if at this stage the application is allowed even with any condition, it would be a mockery of law.

11. The contentions of learned Counsel for the petitioners is that the petitioners cannot be penalised for the failure on the part of their counsel to appear on the relevant dates when the petitioners were diligently pursuing their case to defend themselves and impugned orders passed by the trial court severely prejudice their valuable to cross-examine PW2 and PW3.

12. The record reveals that for more than three years, PW2 and PW3 have been coming to the Court from Bajpat (U.P.) religiously on every date of hearing, except for few occasions. Every time they were made to wait through out the day and it would be pertinent to mention here that PW3 is aged about 60 years and is a cancer patient.

13. There has to be some time limit for the Court to complete the recording of the statement of witnesses. It is not that, the prosecution has been seeking dates or delaying the examination of PW2 and PW3. Time of witnesses is equally precious as that of accused and their counsel and witnesses cannot be asked to come time and again to the Court for giving evidence as if they had no other work to do.

14. In this case, the petitioners adopted all the dilatory tactics so that PW2 and PW3 (the close relatives of unfortunate victim) were put to maximum harassment, suffering and torture and petitioners succeeded in their ulterior motive to delay the trial to a certain extent.

15. Under these circumstances, there is no occasion for this Court to exercise power under Section 482 Cr.P.C. since there is no illegality or infirmity in the impugned orders passed by the Ld. Additional Sessions Judge and if the present petition is allowed and witnesses are recalled for further cross-examination, it would make a mockery of law and no public witness would come to the Court for giving evidence and no Criminal Case would reach its ultimate destination.

16. Thus, the present petition is nothing but an abuse of the process of law and is most bogus and frivolous one and the same is hereby dismissed with costs of Rs.5,000/-. Petitioners are directed to deposit the costs with the trial court within four weeks from today falling which the trial court shall recover the same in accordance with law.

17. Trial court record be sent back forthwith.