Avtar Singh vs State
2010 Latest Caselaw 3601 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          CRL. M.C. 1326/2010

                                                           Decided on 04.08.2010
IN THE MATTER OF :

AVTAR SINGH                                                    ..... Petitioner
                           Through: Mr. R.P. Luthra, Advocate with Mr. Karan
                           Jain, Mr. Rahul Singh and Ms. Aditi Sambhar,
                           Advocates

                      versus

STATE                                                        ..... Respondent
                           Through: Mr. M.N. Dudeja, APP for the State.

CORAM

* HON'BLE MS.JUSTICE HIMA KOHLI

     1. Whether Reporters of Local papers may                    No
        be allowed to see the Judgment?

     2. To be referred to the Reporter or not?                   No

     3. Whether the judgment should be                           No
        reported in the Digest?

HIMA KOHLI, J. (Oral)

1. The present petition is filed by the petitioner under Section 482

of the Cr.PC praying inter alia for setting aside an order dated 15.04.2010

passed by the learned ASJ, Karkardooma Courts, in FIR No.105/2004 lodged

against the petitioner and another accused under Section 308/506(2)/34 IPC

with Police Station: Mandawali.

2. By the aforesaid order, the application filed by the petitioner

under Section 311 Cr.PC for recalling two prosecution witnesses, namely,

PW1 Mukesh Kumar, the complainant and PW7 Rizwan, for cross-

examination on his behalf was rejected. While passing the rejection order,

the Court observed that the aforesaid witnesses had already been cross-

examined on behalf of the accused persons by the counsel on 03.05.2009

and the application was silent as to the point left by the earlier counsel on

which, further cross-examination of PW1 and PW7 was sought.

3. Counsel for the petitioner states that without going into any

other issue as raised in the present petition pertaining to the authority of the

previous counsel to cross-examine the said witnesses, one opportunity be

granted to cross-examine PW1 and PW7 before arguments are addressed in

the matter, as failure to do so will cause irreparable loss and injury to the

petitioner. Pertinently, PW1 was cross-examined on behalf of both the

accused persons by a counsel on 03.05.2009 and PW7 was cross-examined

on 12.10.2009. The present application came to be filed by the petitioner on

09.04.2010, stating inter alia that the previous counsel had not cross-

examined the said witnesses to bring out the defence of the petitioner.

4. No doubt, the provisions of Section 311 Cr.PC empower the

Court to summon any person as a witness or re-examine/recall any person

already examined at any stage of the trial, object being to bring on record

the evidence not only from the point of view of the accused, but also from

the point of view of the prosecution. Considering the fact that final

arguments have yet to be addressed in the matter and the counsel for the

petitioner assures the Court that he shall not delay the proceedings if one

date is fixed for cross-examination of the two witnesses, i.e., PW1 & PW7,

which he states shall be sufficient, the present petition is allowed. However,

the petitioner is directed to pay costs of Rs.10,000/-, out of which

Rs.5,000/- shall be paid to the complainant before the date of hearing fixed

before the learned ASJ and the remaining costs Rs.5,000/- shall be

deposited with the Delhi High Court Legal Services Committee within one

week from today.

5. As the matter is stated to be listed before the learned ASJ on

16.08.2010, the parties are directed to appear before the concerned court

on the said date. On the said date, only one opportunity shall be given to

the petitioner to cross-examine PW1 and PW7 by fixing a date in that

regard. Proof of payment/deposit of costs shall be shown to the concerned

Court on the aforesaid date.

6. The petition is disposed of.

7. A copy of this order shall be forwarded by the Registry forthwith

to the concerned Court for perusal and compliance.

                                                           (HIMA KOHLI)
AUGUST 04, 2010                                               JUDGE
rkb