Manoj Kumar Rai vs Govt. Of Nct Of Delhi
2009 Latest Caselaw 3662 Del

                 IN THE HIGH COURT OF DELHI

                   + Crl.M.C. No. 1917/2009

                            Date of decision: 10th September, 2009

     Manoj Kumar Rai                    ... Petitioner
           through: Mr. Mukesh Kr. Verma, Adv.

                              VERSUS

     Govt. of NCT of Delhi                        ....Respondents
            through: Ms. Jaishree, Adv. for the complainant.
            Mr. Manoj Ohri, APP for the State with Insp. Iqbal
            Mohammad and SI Suresh Chand.

CORAM:
HON'BLE MS. JUSTICE GITA MITTAL

        1. Whether reporters of local papers may be allowed to see
             the Judgment?
        2. To be referred to the Reporter or not?
        3. Whether the judgment should be reported in the Digest?

GITA MITTAL, J(Oral)

1.    By this petition under section 482 of the CrPC, the petitioner

Manoj Kumar Rai has prayed for one opportunity to cross examine PW

15 Sh. Kamal Kishan Dev. It has been submitted by learned counsel

for the petitioner that PW 15 had appeared as a witness firstly on the

11th March, 2008. In his testimony on this date, he has produced a

photocopy of the complaint dated 13th May, 2007 lodged by him with

the commissioner of police for the first time. For the reason that this

was not an original document as it was not exhibitted and only
                                 -2-

marked as Mark B-1 for identification purposes by the learned trial

Judge.

2.   The contention of the petitioner is that this document was not

part of the documents relied on by the prosecution in support of the

case and was not filed alongwith the charge sheet.   Under the orders

of the court, on the 11th of March, 2008, a photocopy of the document

was directed to be served on him. The submission is for the reason

that the document was only a photocopy and was not primary

evidence, consequently no effective cross examination thereof was

conducted on behalf of the petitioner.

3.   It is further submitted that after the examination of PW 15 was

complete and he was under cross examination, the prosecution had

moved an application seeking further re-examination of PW 15. This

application was allowed by the learned trial judge by an order passed

on 1st November, 2008.     Inasmuch as the court had permitted re-

examination    whereas    the   prosecution   was    seeking     further

examination in chief of the witness, this order had been assailed by

way of Crl.M.C.No. 3630/2008 entitled Manoj Kumar Rai vs. State in

this court.   This petition was allowed by an order passed on 20th

January, 2009 whereby it was clarified that the re-examination of PW

15 would take place after conclusion of his cross examination.
                                 -3-

4.   PW 15 appears to have been cross examined on 17th and 18th

April, 2009 on behalf of the accused persons including the petitioner.

Thereafter the witness was re-examined on behalf of the prosecution.

5.   The statement in re-examination on 18th of April, 2009 made by

this witness is brief and may be considered in extenso :-

      "Re-examination by Ld. APP for State in compliance to the
      orders of the Hon'ble High Court dated 20.1.09
                 The complaint dated 13.5.07, which was
      addressed to the then Commissioner of Police duly
      received in his office is Ex.PW 15/X running into 8 pages,
      bears my signatures at point A as well as of my wife at
      point B.    Copy was to ACP, National Human Rights
      Commission and National Women's Commission and the
      same was received with P.S. Dabri."


6.   On the same date, a request was made on behalf of the

petitioner that he may be permitted to further cross examine the

witness in the light of his re-examination. The same was rejected by

the Additional Sessions judge on the ground that the petitioner had

extensively cross examined the witness on the complaint which was

marked on 18th April, 2009 and that the only addition in the re-

examination was that the complaint was exhibitted on record. For this

reason, the prayer for further cross examination was denied to the

petitioner.

7.   Mr. Manoj Ohri, learned APP for the state and Ms. Jaishree,

learned counsel representing the complainant (who appeared as PW
                                   -4-

15) have extensively opposed the grant of any further opportunity to

the petitioner to cross examine the witness. My attention has been

drawn by them to the several observations of the learned Additional

Sessions Judge in the order dated 17th April, 2009 and 18th April, 2009

which would suggest that the learned counsel appearing for the

petitioner was trying his utmost to protract the trial.

8.   Learned counsel for the petitioner on the other hand has

contended that the same does not reflect the correct position

inasmuch as no effort has been made at all to delay or protract the

trial and that out of the total of 23 witnesses, deposition of 16

witnesses was completed without any kind of comments against the

same counsel. It has also been submitted that in view of the difficulty

being faced, during the course of trial, the petitioner was constrained

to seek transfer of the trial to another court by way of Crl.Application

No. 104/2009 and that by an order passed on 7th July, 2009, the

learned District Judge has directed withdrawal of the case from the

court of the Additional Sessions Judge before whom it was listed on

17th and 18th April, 2009, and has transferred/assigned the same to

another learned trial judge.

9.   It has further been submitted that prior to the re-examination of

the witness conducted on 18th April, 2009, the document had not been
                                  -5-

proved on record.      It is submitted that this complaint contains

allegations which were never made to either the SDM in the first

statement recorded during the inquest proceedings or in the

statement under section 161 of the CrPC or in the deposition recorded

by the court in chief of this witness. No effective cross examination

with regard to the allegations made in the complaint was conducted

as the complaint was not substantive evidence and for this reason

there was no need on behalf of the petitioner to do so. It is urged that

valuable rights of the petitioner are involved and the allegations made

in the complaint are of an extremely serious nature and the defence of

the petitioner shall be irreparably damaged if he is not given an

opportunity to cross examine the same.

10.   On a consideration of the entire matter, though there are

isolated questions put to the witness with regard to the complaint and

a blanket suggestion made to him in his prior cross examination on

17th and 18th April, 2009, however it remains a fact that this document

was not exhibited on record an was not part of substantive evidence

till his re-examination by the state after the cross examination was

over. I therefore, find substance in the application's contention that

his defence shall be irreparably jeopardised and impacted if he is not

given one opportunity to cross examine the witness. Interests of
                                   -6-

justices merit that a fair opportunity is given to the petitioner to cross

examine the witness.

      Be that as it may, however I find that the witness has been

extensively cross examined and certain observations on the record of

the trial court with regard to efforts to delay the completion of the

testimony of the witness have been made. Therefore, in the interest

of justice, it is directed that the petitioner shall be given one

opportunity on the next date of hearing.

11.   I am informed by learned counsel for the petitioner as well as the

complainant that the matter is now listed for 1st October, 2009. It is

submitted by the learned counsel for the complainant that the witness

shall be coming to the court on the next date of hearing.

      This petition is accordingly allowed in the following terms :-

      PW 15    Shri K.K. Deb shall be tendered for his further cross

examination on behalf of the defence on the next date of hearing. It

shall be ensured that opportunity is given that the cross examination

is completed within a reasonable period.

      This petition is allowed in the above terms.

      Dasti

                                        Gita Mittal, J.

September 10, 2009 kr