Delhi High Court
Manoj Kumar vs State Of Delhi on 22 November, 2010
Author: Hima Kohli
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C. 3617/2010 and CRL.M.A. 17570-71/2010
Decided on 22.11.2010
IN THE MATTER OF :
MANOJ KUMAR ..... Petitioner
Through: Mr. M.L. Yadav, Advocate with
Mr. Lokesh Chandra, Advocate
versus
STATE OF DELHI ..... Respondent
Through: Mr. Navin Sharma, 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 praying inter alia
for setting aside the order dated 19.10.2010 and seeking permission to
examine the defence witnesses. The petitioner has also sought permission
to examine PW-1 and PW-3, parents of the deceased, without depositing the
costs imposed on him.
2. It is pertinent to note that vide order dated 01.04.2010, the
learned ASJ noticed the fact that PW-1 and PW-3 were material witnesses
(parents of the deceased) and were examined in September 2009 by the
other co-accused closely related to the petitioner, after which a number of
dates were given, but no request was made by the petitioner to cross-
examine them. Despite the aforesaid position, the application of the
petitioner for cross-examining the aforesaid witnesses was allowed, subject
to payment of costs of Rs. 50,000/-, out of which Rs. 10,000/- each were
directed to be given to PW-1 and PW-3, and of the remaining Rs. 30,000/-,
50% was directed to be deposited in DLSA and 50% in the Advocate Welfare
Fund of Delhi Bar Council. The learned ASJ further directed that cross
examination of both the witnesses was to be carried out within a time bound
period of one hour for which only one opportunity was to be granted and in
case the witnesses could not be available due to any supervening reasons,
their examination already conducted would be admissible.
3. As per the counsel for the petitioner, an application was filed
later on for waiver of said costs imposed vide order dated 01.04.2010, but
the same was dismissed vide order dated 12.07.2010. In the order dated
12.07.2010, the learned ASJ observed that PW-1 and PW-3 were present for
the third time in the court, in order to be cross-examined by the petitioner,
however the counsel for the petitioner was not present and even the costs
imposed vide order dated 1.04.2010 had not been paid by the petitioner.
Observing that the petitioner did not appear to be serious about cross-
examining the aforesaid two witnesses, the learned ASJ discharged them.
The petitioner has not specifically challenged either of the aforesaid orders.
Instead, he seeks permission to examine the said witnesses, without
depositing the costs.
4. Counsel for the petitioner states that in the order dated
12.07.2010, the Court had erroneously recorded that the counsel for the
petitioner/accused was not present since morning though the public
witnesses were present for the third time to submit themselves for their
cross-examination subject to payment of costs by the petitioner. He draws
the attention of this Court to pages 16 to 20 of the paper book to state that
the cross-examination of PW-9 was conducted by him on 12.07.2010. He
submits that even if it is assumed that the counsel was not available for any
reason, in the interest of justice, an Amicus Curiae should have been
appointed by the Court for cross-examining the witnesses.
5. It is not sufficient for the counsel for the petitioner to contend
that he was present in court on 12.7.2010, as the costs imposed by the
learned ASJ in the order dated 1.4.2010 had still not been paid by the
petitioner, showing the petitioner's lack of seriousness in availing of the
opportunity to cross-examine PW-1 and PW-3. Furthermore, considering the
fact that the same counsel, who is engaged by the petitioner to conduct the
present petition, was available before the learned ASJ on 12.07.2010, the
learned ASJ could not have been expected to appoint an Amicus Curiae
additionally, to assist the Court to cross-examine PW-1 & PW-3. No
justification has been given by the counsel for the petitioner for approaching
this Court so belatedly, when the order was passed almost eight months
ago, on 01.04.2010 and the application for seeking review of the aforesaid
order was dismissed over four months ago, on 12.07.2010. A perusal of the
file reveals that the next date of hearing fixed in the matter is 26.11.2010.
This Court is therefore inclined to agree with the learned ASJ that the
petitioner is intentionally dragging his feet and trying to delay the
proceedings on one pretext or the other. There is no other justification for
filing the present petition on the eve of the date of hearing. No explanation
is coming forth for non-filing of a petition to assail the orders dated
01.04.2010 and 12.07.2010 within a reasonable time.
6. In the order dated 19.10.2010, the learned ASJ had noted that
the petitioner had not bothered to file the list of witnesses and nor had the
witnesses been summoned. As a result, the defence evidence was closed
and it was directed that the matter be listed for arguments on 26.11.2010.
7. In the course of arguments, though no submission has been
made by the counsel for the petitioner, assailing the order dated 19.10.2010
by which, the defence evidence of the petitioner was closed, however, as
counsel for the petitioner assures the Court that he has no intention of
delaying the trial, in the interest of justice, a last opportunity of two days is
granted to the petitioner to file the list of defence witnesses. If the list is
filed on the date fixed, i.e., on 26.11.2010, then one opportunity be given to
the petitioner to summon the witnesses for their examination. However, in
case, the petitioner does not take any step to file the list of witnesses on
26.11.2010, the learned ASJ shall proceed to hear the final arguments in the
matter, as already ordered.
8. The petition is disposed of alongwith the pending applications.
9. The Registry is directed to forward a copy of this order forthwith
to the learned ASJ for information and compliance.
(HIMA KOHLI)
NOVEMBER 22, 2010 JUDGE
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