Alka Rani Dhingra & Anr. vs State & Ors.
2010 Latest Caselaw 693 Del

 *                     IN THE HIGH COURT OF DELHI AT NEW DELHI

+       C.M. (Main) No.487 of 2007 & C.M. Appl. Nos.5027 of 2007, 8888 of 2007

%                                                                              08.02.2010

         ALKA RANI DHINGRA & ANR.                        ......Petitioners
                             Through: Ms. Sunita Tiwari, Advocate.

                                            Versus

         STATE & ORS.                                               ......Respondents
                                       Through: None.

                                                        Date of Reserve: 2nd February, 2010
                                                          Date of Order: 8th February, 2010

         JUSTICE SHIV NARAYAN DHINGRA

1.       Whether reporters of local papers may be allowed to see the judgment?

2.       To be referred to the reporter or not?

3.       Whether judgment should be reported in Digest?

                                      JUDGMENT

1. By this petition, the petitioner has assailed an order dated 6th March, 2007 passed

by the learned trial court. The case was fixed for evidence on 6th March, 2007. A perusal

of the record shows that the petitioners objected to filing of photocopies of the official

record summoned from RW-1 and also wanted the cross-examination to be deferred. The

court deferred the cross-examination of RW-1 and closed the cross-examination of RW-3.

Record of the trial court also shows that on 15th January, 2007, RW-1, Mr. Rajesh Kumar

had appeared from office of the respondent (Smt. Neeraj Dhingra). He has produced

some record on that day but counsel for the parties were not available and he was asked to

come on next date of hearing, i.e., on 6th March, 2007. On 6th March, 2007 when the

witness again appeared, the counsel for the petitioner refused to cross-examine the

witness on the ground that the photocopies of the record produced by this witness should

not have been allowed by the court.

2. The witness Mr. Rajesh Kumar was a clerk from DRM Office, Northern Railway.

Official record was summoned from the office of Northern Railway by respondent and he

had brought the record and the court directed him to place on record photocopies of the

letter brought by him on the ground that the file of the Department cannot be retained and

this photocopy shall serve as a reference as to what record was produced. The record was

regarding an application made by Smt. Neeraj Dhingra for maternity leave and a letter

sanctioning the maternity leave. The objection raised by the petitioner regarding not

taking these documents on record were recorded in the evidence sheet itself and the trial

court observed that these documents were being retained in the court file for future

reference to know what record was produced. Learned counsel did not cross-examine the

witness on the ground that she had to seek instructions. The court discharged the witness

observing that in case the witness is re-summoned, the cost shall be borne by the

petitioner. This witness was re-called on 12th July, 2007 and the counsel did not cross-

examine the witness stating that in view of the order dated 6th March, 2007, she does not

need to cross-examine this witness. The cross-examination of this witness was recorded

nil.

3. The other witness who appeared on 6th March, 2007 was RW-3, Smt. Neeraj

Dhingra herself. This witness was also not cross-examined by the counsel for the

petitioner on the ground that certain documents had been filed by the witness in her

statement and she need to seek instructions from her client. The court told the counsel

that no new document had been filed by the witness and all documents were in the

knowledge of the petitioner and she should cross-examine the witness. The witness had

only placed on record birth certificate of her child, death certificate of her husband and a

certificate of the child that child was a bona fide student of Mahashay Chunnilal Shishu

Mandir School and a certified copy of an FIR lodged by the petitioner against Mr. Vijay

Kumar (deceased). Despite the court insistence that she should cross-examine the

witness, counsel did not cross-examine the witness and the cross-examination was

recorded as nil. After passing orders regarding these two witnesses in the evidence sheet

itself, the court passed the impugned order dated 6th March, 2007 by which she reflected

what was recorded in the evidence sheet.

4. The petitioner has challenged order recorded in order sheet dated 6th March, 2007

and has not challenged the order recorded by the trial court in the evidence sheet whereby

cross-examination of RW-3 was closed and RW-1 was ordered to be re-called. In the

order sheet of 6th March, 2007, the court made observation about filing of photocopies

and observed that these documents be not taken on record as they are photocopies only.

The court specifically observed that RW-1 was recorded but cross-examination was

deferred. The court also observed that RW-3 was recorded and cross-examination was

recorded as nil. It appears that counsel for the respondent made a statement that he was

not to examine any other witness. The trial court recorded this also and closed the

evidence on behalf of Smt. Neeraj Dhingra and fixed the case for evidence on behalf of

other respondent, namely, Ms. Shashi Prabha for 12th April, 2007.

5. The order is assailed by learned counsel for the petitioner that on one hand in the

order sheet, court had observed that the documents were photocopies and be not taken on

record but the order on evidence sheet shows that these documents need not be rejected.

On one hand the cross-examination of RW-3 was recorded as nil while cross-examination

of RW-1 was deferred and still the statement of respondent closing the evidence was

recorded. She states that the order needs to be set aside.

6. This petition seems to be preferred just to prolong the case. The order passed by

the learned District Judge, just below the statement of RW-1 and RW-3 makes it

abundantly clear as to what was the order in respect of evidence of RW-1 and what was

the order in respect of RW-3. The order sheet was supposed to reflect the order passed by

the learned District Judge in respect of RW-1 and RW-3. There appears to be an

inadvertent error which crept in the order regarding photocopies not to be taken on

record.

7. I consider that these photocopies since had already been taken on record while

recording evidence of RW-1, this observation should not have been there. Regarding

closure of evidence by Smt. Neeraj Dhingra, it is clear that Smt. Neeraj Dhingra's plea

was that she did not want to examine any other witness. Since cross-examination of RW-

1 was deferred at the request of the petitioner and the court had ordered that she would

have to bear the cost of re-summoning, except for cross-examination of RW-1, no other

evidence was to be produced by Smt. Neeraj Dhingra and she was within her right to

make statement closing her evidence. This witness, RW-1, was re-called for cross-

examination again on 12th July, 2007 and was not cross-examined deliberately. The

petitioner deliberately did not cross-examine RW-3 and moved this petition. RW-3 had

not produced any document which was new. The date of birth of the child, date of death

of deceased and school, etc., were all stated in the pleadings itself. The FIR was filed by

the petitioner and was within the knowledge of the petitioner. The witness only brought it

to the notice of the court that there was an FIR. Had there been some new fact brought by

this witness on record contrary to the pleadings or the documents or she had tried to

project a case which was not pleaded by her, the petitioner would have been justified in

objecting to the documents but still she could not have refused to cross-examine the

witness. Since she had got her objections recorded, so witness was not to be sent back

unexamined. But it has become a practice not to examine the witness on the day they

appear and make them run to the court time and again. The trial court is not supposed to

the tune of advocates pleasure in calling witnesses again and again because the counsel

does not want to cross-examine the witness on a particular day or is not ready for cross-

examination or had not sought instructions from the client in time. Whenever a case is

fixed for cross-examination of the witness, the counsel is supposed to seek instructions

well in advance and come ready with questions in the court to be asked from the witness.

If there are any documents regarding which she wants to raise objections, she can raise

objection about the documents which the court may decide on the spot or may defer the

decision at the time of final hearing. But on this ground, the counsel cannot refuse to

cross-examine the witness. The court did right thing in closing the cross-examination.

8. I find no reason to interfere with the order of the trial court. The petition is hereby

dismissed with cost of Rs.5,000/- to be paid to the respondents. Trial court record be sent

back immediately.

SHIV NARAYAN DHINGRA J.

FEBRUARY 08, 2010 'AA'