S.K. Kapoor vs Mcd
2010 Latest Caselaw 3630 Del

*          IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           CRL.REV.P.No. 493/2009

                                                 Decided on 05.08.2010
IN THE MATTER OF :

S.K. KAPOOR                          ..... Petitioner
                            Through : Mr. S.K. Kapoor, Adv.

                   versus


MCD                                   ..... Respondent
                            Through : Mr. Sanjeev Sabharwal, Adv.

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 petitioner is aggrieved by an order dated 21.8.2009

passed by the learned Metropolitan Magistrate, New Delhi rejecting his

application filed under Section 311 Cr.P.C., seeking re-examination of

the witnesses produced by the respondent/complainant/MCD, namely,

PW1 Shri Govind Ram, Licensing Inspector, MCD and PW2 Shri H.K.

Sharma, ALO, MCD.

2. Counsel for the petitioner states that the aforesaid order is

liable to be quashed as the petitioner/accused was ignorant about the

practice and procedure of the court and could not cross-examine the

witnesses when such an opportunity was granted to him by the

learned Metropolitan Magistrate. In this regard, he draws the

attention of this Court to the application filed by the petitioner before

the learned Metropolitan Magistrate. A perusal of the said application

shows that apart from making an averment to the effect that the

petitioner/ accused was ignorant about the practice and procedure of

the court, it was stated that he was not provided an amicus curiae to

assist him and he never engaged any counsel earlier.

3. It is pertinent to note that the petitioner is stated to be a

graduate, who retired from the Army as a Captain. On inquiry,

counsel for the petitioner states that the petitioner was appearing in

the complaint case on his own and that prior to filing of the aforesaid

application, no request was ever made by him to the court for being

provided with any legal service to assist him. It is mentioned in the

impugned order that while the aforesaid two witnesses were examined

on 24.7.2008, the aforesaid application came to be filed by the

petitioner only on 6.7.2009, i.e., after a gap of about one year.

Pertinently, in that one year, 14 dates were fixed in the case, after

which the evidence of the respondent/complainant and that of the

petitioner/accused was finally closed and when the matter was at the

stage of addressing arguments, the petitioner filed the above

application.

4. It is settled law that ignorance of law is no defence. The

petitioner is an educated person and expected to know the law. It is

not as if he was not given an opportunity to cross-examine the

witnesses produced by the other side. Rather, he declined such an

opportunity. Being well aware of the fact that he did not cross-

examine the witnesses in question either himself or by engaging a

counsel, he cannot be permitted to do so at this belated stage, without

offering any sufficient cause or justification for not doing so when an

opportunity was so granted to him.

5. Counsel for the petitioner states that he is the brother of

the petitioner and that he is now conducting the matter on his behalf

before the court below. Having regard to the fact that the petitioner's

own brother is a practicing advocate, he could very well have

contacted him earlier to seek appropriate legal assistance to defend

himself. Counsel for the petitioner has not been able to point out as to

at which stage of the trial did the petitioner ask the learned

Metropolitan Magistrate for assistance of an amicus curiae and if so,

the order declining such a request. It has therefore to be assumed

that the present application is an afterthought. Having failed to ask

for legal assistance at the relevant stage, the petitioner cannot be

permitted to set the clock back on the ground that he is ignorant about

the practice and procedure of the court and therefore could not cross-

examine the witnesses at the relevant time. This cannot be

considered as a reasonable or sufficient ground for recalling the

witnesses, after lapse of one year, at the stage of arguments in the

case.

6. Counsel for the petitioner further states that the petitioner

is not the owner of the premises in question, which has been challaned

by the MCD. This is not an issue on which cross-examination of the

two witnesses can be claimed by the petitioner. Rather, the question

is purely one which hinges on ownership/title, which could have been

established by the petitioner by producing the relevant documents.

7. For all the aforesaid reasons, this Court does not find any

illegality, arbitrariness in the impugned order or miscarriage of justice,

which deserves interference. Accordingly, the present petition is

dismissed as being devoid of merits.

HIMA KOHLI,J AUGUST 05, 2010 sk