Amarvir Singh S/O Mohinder Singh vs State (N.C.T. Of Delhi)
2007 Latest Caselaw 1758 Del

JUDGMENT

V.B. Gupta, J.

1. Present petition has been filed under Section 482/483 Cr.P.C. seeking quashing of impugned order dated 24th May, 2007, passed by ACMM, Patiala House Court, New Delhi whereby the opportunity of cross-examination of the prosecution witness was closed and trial court be directed to conduct a joint trial of all the accused persons and the petitioner may be allowed to cross-examine the witness Jaswinder Singh.

2. Trial is pending before the court of ACMM and prosecution evidence was being recorded, when the present petition has been filed.

3. It has been contended by learned Counsel for the petitioner that the petitioner moved an application under Section 223 Cr.P.C. for joint trial of the accused persons i.e. his trial should be conducted along with accused Ajmer Singh, which has not been disposed of. Charges against accused Ajmer Singh was framed on 25th May, 2007 and simultaneously, the petitioner was called upon to cross-examine PW7, Jaswinder Singh. Since, the defense of the petitioner was likely to be disclosed, therefore the petitioner sought permission to cross-examine the witness on some other date along with co-accused Ajmer Singh but the request was declined by the trial court and it closed the opportunity to cross-examine the witnesses.

4. Trial court record has been summoned. Charges have been framed and prosecution evidence is being recorded. On 18th January, 2007, three PWs namely, PW6, PW7 Jaswinder Singh and PW8 were present. On that date, petitioner moved an application under Section 223 Cr.P.C. for joint trial with accused Ajmer Singh.

5. The learned trial Judge after considering the submissions observed that:

Vide order dated 5th April, 2006, the trial of accused Ajmer Singh had been directed to be separated from the other accused persons so that proceedings are not delayed and at that point of time it was revealed that accused Ajmer Singh has been arrested and released on bail vide order dated 23rd March, 2006, but he again absconded and was not appearing before the court. Prior to that, proceedings under Section 82/83 Cr.P.C. has been initiated against accused Ajmer Singh and he has been kept in Column No. 2 but after he has been arrested and had been granted bail, there is no reason why he should not be tried with the present case.

6. So, according to this order it is clear that accused Ajmer Singh is to be tried along with the present case. On that very day, statement of PW6 and PW8 were recorded and further examination in Chief of PW7 Jaswinder Singh was also recorded and his cross-examination was deferred as application under Section 223 Cr.P.C. filed by present petitioner was pending. It was ordered that notice of this application be issued to co-accused Ajmer Singh.

7. On 23rd May, 2007, all the accused persons except Ajmer Singh were present and accused Ajmer Singh was granted exemption. On behalf of the co- accused Narender Jeet Singh, it was submitted by his counsel that trial of the case is being delayed on account of repeated non appearance of accused Ajmer Singh and since the witness Jaswinder Singh is present in the court he is ready to cross-examine. Whereas counsel for accused Ajmer Singh stated that Jaswinder Singh is not relevant for accused Ajmer Singh. He does not wish to cross-examine the said witness.

8. Under these circumstances, counsel for petitioner was directed to cross-examine the witness since the witness had to go to Dubai and was not be available thereafter.

9. Counsel for petitioner submitted that the cross-examination of this witness had been deferred only because an application under Section 223 Cr.P.C. has been filed and he wants to cross-examine the witness only after the decision of his application since there is a possibility that lacunae would be filed by the prosecution and further defense and grounds taken by the petitioner in the cross-examination of PWs would be revealed which are likely to be filled up by the prosecution. Thus, the learned trial Judge observed that:

when the charge sheet has already been filed and copies have been supplied to the accused and no further investigation is pending, the court is of the view that no prejudice shall be caused to accused Amarveer Singh if he cross-examine witness Jaswinder Singh. Moreover, since this witness has come from Jallandhar, Punjab and will not be available in future and is required to go to Dubai. Even otherwise, there is no reason as to why the cross-examination of the said witness should be delayed when counsel for other accused i.e. Ajmer Singh and Narenderjit Singh have already stated that they do not want to cross-examine the said witness and have no objection if he is cross-examined by the counsel for the accused Amarveer Singh.

10. The learned trial court further observed that:

Praveen Singh, Adv. for the present petitioner submits that he has been caught unaware and hence he is not in a position to cross-examine the witness today.

11. The trial court observed that plea raised by counsel is frivolous since witness Jaswinder Singh has already been examined in chief in presence of the accused and his counsel on 18th January, 2007 and it was only on his request that the cross-examination was deferred. However, in the interest of justice and on the request of the counsel for the accused Amarveer Singh, the case was adjourned for cross-examination of this witness by the accused for 24th May, 2007. It was also clarified that in case accused Amarveer Singh does not cross-examine the said witness for any reason whatsoever on 24th May, 2007, the said witness will not be recalled for the said purpose in future in view of his advance intimation regarding his non availability in India. On request of counsel for Amarveer Singh, the matter was listed for cross-examination for 24th May, 2007.

12. On 24th May, 2007, PW7 Jaswinder Singh was present for cross-examination. On that date, his counsel filed an application for deferring the cross-examination in view of joint trial. The learned trial court observed that:

Earlier application of the accused on the same ground has already been considered on 23rd May, 2007 and a detailed order has been passed. Even otherwise, the application does not lie as the charge against Ajmer Singh has been framed today and he has joined the proceedings and also in view of the fact that the court had clarified on 23rd May, 2007, that no request for further adjournment shall be entertained and the present application is only an abuse of process of law and same was dismissed with costs of Rs. 1,000/-.

13. PW Jaswinder Singh was submitted for cross-examination but his counsel stated that he will not cross-examine the witness despite being warned by the trial court that witness shall not be recalled in future and opportunity was given to the counsel.

14. In the light of above orders passed by the trial court, it is to be seen as to whether present petition under Section 482 Cr.P.C. is maintainable or not.

15. Section 482 Cr.P.C. reads as under:

482. Saving of inherent power of High Court- Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.

16. This Section envisages three circumstances under which the inherent jurisdiction may be exercised, namely:

(i) to give effect to any order under the Code,

(ii) to prevent abuse of the process of Court, and

(iii) to otherwise secure the ends of justice.

17. Further to seek interference under this Section, three conditions are to be fulfillled, namely:

(1) the injustice which comes to light should be of a grave and not of a trivial character;

(2) it should be palpable and clear and not doubtful; and

(3) there exists no other provision of law by which the party aggrieved could have sought relief.

18. In the present case, there is nothing on record to show that any injustice has been caused to the petitioner or there has been any abuse of the process by the trial court. PW7 Jaswinder Singh has appeared in the court on number of occasions and admittedly the trial court on 18th January, 2007 passed order for conducting joint trial with respect to all the accused, and other accused persons have been cross-examining the witness but it is the present petitioner who has been delaying the trial on the ground that he wants a joint trial along with the accused Ajmer Singh. Since joint trial is being conducted by the trial court, the present petition is mischievous and frivolous one and has been filed just to delay the proceedings, since PW7 Jaswinder Singh has appeared on large number of occasions in the court and it is the counsel for the present petitioner who has failed to cross-examine the witness, in spite of various opportunities granted to him.

19. As such, I do not find any infirmity or illegality in the impugned order passed by the trial court and present petition is liable to be dismissed with heavy costs. Accordingly, the present petition is hereby dismissed with costs of Rs. 2,500/-.

20. The petitioner is directed to deposit the costs with the trial court within one month from today, failing which the trial court shall recover the same in accordance with law.

21. A copy of the judgment along with trial court record be sent to the trial court forthwith.