Balbir Singh @ Kalu vs State Nct Of Delhi
2012 Latest Caselaw 4182 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                        CRIMINAL M.C. No.1126/2012

                                        Decided on : 16th July , 2012

BALBIR SINGH @ KALU                        ..... Petitioner
               Through: Mr. Aditya Sharma, Advocate.

                             Versus

STATE NCT OF DELHI                         ..... Respondent
               Through: Mr. Sunil Sharma, APP for the State.

CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J. (ORAL)

Crl. M.A. No.3962/2012 (for exemption)

1. Allowed, subject to all just exceptions.

2. The application stands disposed of.

Crl. M.C. No.1126/2012

1. This is a petition under Section 482 Cr.P.C. assailing the

order dated 25.2.2012 passed by the learned Additional

Sessions Judge rejecting the application of the petitioner under

Section 311 Cr.P.C. for recalling witnesses for cross-

examination as well as for further cross-examination.

2. I have heard the learned counsel for the petitioner as

well as the learned APP for the State and have also gone

through the record.

3. The learned counsel for the petitioner has sought cross-

examination of two sets of witnesses. The first set of

witnesses consists of PW-1, Anil, brother of the deceased and

PW-2, Surjeet, another eye-witness. The second set of

witnesses consists of PW-7, Constable Kiran Pal, PW-8,

Constable Ram Karan, PW-11, Head Constable Pirthi Singh,

Duty Officer, who has proved FIR and PW-17, Head Constable

Tek Ram, Moharar Malkhana, where the case property has

been deposited.

4. So far as the first set of witnesses are concerned, they

are sought to be cross-examined on the ground that the

previous counsel who conducted the cross-examination had

not cross-examined the witnesses with regard to the Naksha

Mauka (site plan), which constitute an essential part of the

entire trial in order to demolish the testimonies of the

witnesses and, therefore, these two witnesses be recalled for

further cross-examination on that score.

5. So far as the second set of witnesses is concerned, it is

stated that although opportunity to cross-examine these four

witnesses was given but as the counsel for the petitioner was

busy in the High Court and could not appear before the

learned trial court, the proxy counsel representing him did not

cross-examine the witnesses and, therefore, this will also

cause an irreparable loss to the petitioner. Accordingly, their

recall has also been sought for cross-examination.

6. The learned APP for the State has vehemently opposed

the application of the petitioner filed under Section 311 Cr.P.C.

for recalling of the witnesses. So far as the first set of

witnesses is concerned, namely, PW-1, Anil and PW-2, Surjeet,

it is contended that a perusal of their statements would show

that the cross-examination runs into 4-5 pages and they have

been extensively cross-examined. Merely because questions

with regard to the site plan have not been put by the previous

counsel, would not constitute a ground for recalling them for

cross-examination. If this is permitted to be done, apart from

the fact that there will be no end to cross-examination, it will

unnecessarily result in delay of the trial. Therefore, a request

in this regard is being opposed.

7. As regards the other four witnesses, the learned APP for

the State has contended that their testimony is more or less

formal in nature and, therefore, their cross-examination is not

required though, an opportunity to cross-examine the

witnesses was given to the petitioner.

8. I have carefully considered the submissions made by the

learned counsel for the parties and have gone through the

order passed by the learned Single Judge of this court in Avtar

Singh vs. State; Criminal M.C. No.1326/2010, where

application of the petitioner for recalling of witnesses for cross-

examination was allowed, subject to payment of cost.

Needless to say that there is no dispute about the power of the

court for recalling a witness for the purpose of cross-

examination in an appropriate case. This can be permitted to

be done, subject to payment of cost. However, merely

because in the case which has been relied upon by the learned

counsel for the petitioner, the witnesses were permitted to be

cross-examined, subject to payment of cost, does not

necessarily mean that in the instant case also such a right

ought to be given to the petitioner. A perusal of the testimony

of PW-1 and PW-2 clearly shows that they have been

extensively cross-examined and both of them happen to be

eye-witnesses. By filing an application for further cross-

examination on the question of site plan, the petitioner is not

only trying to now fill up the lacuna but is also trying to cause

the delay in the final disposal of the case. This cannot be

permitted to be done, nor the provision under Section 311

Cr.P.C. is meant for such an exercise.

9. As regards the other four witnesses, I agree with the

contention of the learned APP for the State that their

testimony is more or less formal in nature. Though, these

formal witnesses were also made available to the petitioner for

the purpose of cross-examination, which opportunity was not

availed of. If these witnesses have not been cross-examined,

the same has been done by the learned counsel for the

petitioner at his own peril. It is not a case where an accused

on account of indigency was prevented from engaging a

counsel. On the contrary, this is a case where the accused

/petitioner had engaged a counsel who is well versed in law

and if such a counsel has chosen not to cross examine the

witnesses, there must be some good reason for the same.

10. The petitioner should have been vigilant to file an

application immediately after examination of the witnesses

rather he has chosen to wait for more than a year and now

when the trial is at the fag-end, he has suddenly woken up

and has tried to reverse the trial. One of the reasons which

results in delay in disposal of the cases is that the accused

persons do not in the first instance cross examine the

witnesses when their statements are recorded. Then after a

time, an application would be filed for cross-examination of the

witness by seeking his recall by giving one explanation or the

other and the Courts are also over indulgent in obliging the

accused persons. This practice has to be strictly curbed by

disallowing the application unless and until some cogent

ground is given.

11. For the above mentioned reasons, I am of the view that

in the instant case, no sufficient ground has been shown by

the petitioner for recalling of any set of witnesses as urged by

him hereinabove.

12. Accordingly, the petition is misconceived and the same is

dismissed.

V.K. SHALI, J.

JULY 16, 2012 'AA'