Noor Jahan vs State Of Nct Of Delhi
2010 Latest Caselaw 115 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+           CRL.M.C. 3464/2009

                                 Date or Order: 12th January 2010

#      NOOR JAHAN                              ..... Petitioner
!                                Through: Muhammad Arif, Advocate

                           versus

$      STATE OF NCT OF DELHI                ..... Respondent
^                          Through: Mr.Jaideep Malik for State.


*      CORAM:
       HON'BLE MR. JUSTICE V.K. JAIN

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

       2.      To be referred to the Reporter or not?        Yes

       3.      Whether the judgment should be
               reported in the Digest?                       Yes


: V.K. JAIN, J. (Oral)

This is a petition under Section 482 Cr.P.C. challenging the order

dated 7.8.2009 whereby the application filed by the petitioner under

Sectin 311 of Cr.P.C. for recalling the prosecutrix(PW-9) for further

cross-examination was dismissed.

2. The impugned order has been challenged primarily on the

ground that the main counsel was not present when PW-5 to PW-11

were examined on 22nd of January, 2009 and, therefore, they were

cross-examined by the junior/associate Shri Gaurav Vashisth, who

being less experienced and due to lack of knowledge could not put

material questions to the prosecurix.

3. A perusal of the record of the trial court would show that the

prosecutrix was examined on 22nd of January, 2009. On that day the

petitioner was represented by her counsel Shri Gaurav Vashisht and

Shri R.K.Kochar. A perusal of the cross-examination of the prosecutrix

would show that she was cross-examined by Shri Gaurav Vashisth,

Advcoate. Thus, not only Shri Gaurav Vashisht who actually cross-

examined the prosecutrix, Shri R.K.Kochar, senor counsel representing

the petitioner was also present at the time of cross-examination of the

witness. It is submitted by the learned counsel for the petitioner that

in fact Mr.Kochar was not present in the trial court on 22 nd of January,

2009. Admittedly no application was filed by the petitioner before the

trial court for correction of the proceedings dated 22.1.2009 on the

ground that Shri R.K.Kochar, Advocate was not present in the court on

that date and that his presence has wrongly been recorded in the

order there. In the absence of such an application, the record of the

proceedings has to be taken as accurate and the petitioner cannot be

permitted to say that Shri R.K.Kochar, Advocate was actually not

present in the court on that date. It is not open to a party to dispute

the correction of the judicial proceedings before a Superior Court,

without first moving the court concerned, by bringing the inaccuracy to

its knowledge and seeking rectification of the error, which according to

him had crept into the proceedings. The Superior Court does not know

what had transpired and who was present before the Court below, on a

particular date. This fact being in the knowledge of concerned Court

alone, the discrepancy, if any, in the proceedings, should be got

removed when the matter is still fresh in the memory of the Judge who

recorded the proceedings. Unless it is done, the record of judicial

proceedings remains sacrosanct and cannot be disputed as regards the

facts stated therein.

4. A perusal of the cross-examination of the prosecurix shows that

she was cross-examined by Shri Gaurav Vashisht after court questions

had been put to the witness. No question proposed to be put to the

witness was rejected by the trial court. Thus, it cannot be said that the

petitioner was denied adequate opportunity to cross-examine the

prosecutrix who is a young girl studying in 3 rd standard at the time of

her cross-examination in court. The application does not specify any

material aspect of the case left out in the cross-examination of the

witness nor does it indicate what questions are proposed to be put to

her. An application for recall of a witness for further cross-

examination, without any limitation, cannot be treated at par with an

application seeking further cross-examination on a material aspect

inadvertently left out or an application to recall him on account of

discovery of new facts which were not in the knowledge of the party at

the time the witness was initially cross-examined.

5. No doubt, the power of the Court under Section 311 of the Code

of Criminal Procedure are wide enough to recall a witness at any stage,

but, the discretion vested in the Court being a judicial discretion, needs

to be exercised on sound legal principles, and a witness cannot be

recalled merely at the asking of a party. We need to appreciate that

the witness coming to depose before the Court, particularly in a

criminal trial is doing a public service to the Criminal Justice System.

While the Judges as well as the lawyers are compensated for the time

they devote to the cases and the party to a case has a personal

interest in the litigation, it is the witness alone who has no personal

interest or stake in the litigation and therefore, is entitled to receive

due respect and protection for the service he renders to the society, by

coming forward to depose before a criminal Court. We cannot deny

that a common man is reluctant to be a witness, particularly in a

criminal case and one major reason behind such reluctance is the

innumerable visits he has to undertake, to attend police stations and

Courts at the cost of considerable inconvenience to him, without any

commensurate benefit. The Courts, therefore, need to realize and

appreciate the inconvenience that is caused to a witness if he is

repeatedly summoned to suit the convenience or interest of a party to

the litigation. Therefore, unless sufficient cause is shown and the

Court feels that the interest of justice would suffer irreparably if the

witness is not recalled, it would not be appropriate to re-summon the

witness who has already been duly examined by the parties to the

litigation. This is more so when the witness happens to be a young

girl, who is victim of a serious crime such as rape and who in our

society is otherwise reluctant to attend the Court. The Courts,

therefore, need to be sensitive to the feeling of such a witness and she

should not be recalled unless the failure to recall her is likely to result

in serious miscarriage of justice.

6. Since the request is not confined to a limited cross-examination

and if allowed, would enable the petitioner to go for an unrestricted

and full-fledged de novo cross-examination of the witness, which

cannot be allowed. The provisions of Section 311 of the Cr.P.C. cannot

be used to fill up the gaps or make up the deficiencies left in the cross-

examination of the witness conducted by a counsel. If witnesses are

allowed to be recalled on such a ground alone, there will be no finality

to their examination. In fact, in a given case, a party may even win

over a witness after his cross-examination has been concluded and

then seek his recall on the pretext that the counsel who cross-

examined him was not well versed in law or was not adequately

briefed on facts. The course, which may possibly result in such

frightening consequences cannot and should not be adopted.

For the reasons given above, I find no merits in the petition and

the same is hereby dismissed.

V.K. JAIN (JUDGE) JANUARY 8, 2010 Rs/bg