Ved Prakash Sharma vs State And Anr.
2012 Latest Caselaw 4261 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI
%                DATE OF DECISION : JULY 19, 2012

+    CRL.M.C. 1556/2012

     VED PRAKASH SHARMA                         ..... Petitioner
                   Through :       Mr.Pradeep Arya, Adv. with
                                   Mr.Narinder Chaudhary,
                                   Mr.Ashish Sharma, and
                                   Ms.Shobhit Mittal, Advs.
                 versus

     STATE & ANR                              ..... Respondents
                       Through :   Mr.Navin Sharma, APP for State -
                                   R-1.
                                   Mr.M.K.Sharma, Adv. for R-2.

      CORAM:
      HON'BLE MS. JUSTICE PRATIBHA RANI

PRATIBHA RANI, J. (Oral)

1. The petitioner before this Court is Ved Prakash Sharma, a witness in case FIR No.202/1998 under Section 386/511 IPC, PS Malviya Nagar who is aggrieved by the order dated 06.02.2012 passed by learned MM on the application under Section 311 CrPC filed by the accused Rajender Kumar Gupta, respondent No.2 herein.

2. The impugned order reveals that the application under Section 311 Cr.P.C requesting to recall PWs - 1, 4, 5 and 6 for cross examination on the ground that the witnesses could not be cross examined properly as the counsel provided by Legal Aid did not appear before the Court, was allowed by the Court finding that the witnesses have not been cross examined through defence counsel.

3. Mr.Pradeep Arya, learned counsel for the petitioner has submitted that he has placed on record the statement of PW-1 Ved

Prakash Sharma recorded in the Court as Annexure-C which shows that examination of witness is running into just two pages and when the witness was tendered for cross examination, accused informed the Court that he has been provided a counsel Mr.Amir Hassan Haq, Advocate from Legal Aid. The learned defence counsel did not appear before the Court nor sent any request and in that circumstance, the request of the accused was declined and witness was cross examined by accused at length.

4. Mr.Pradeep Arya, Advocate for the petitioner has further submitted that when the petitioner i.e. PW-1 Ved Prakash Sharma has been cross examined by the accused at length on all material details, just because his counsel could not appear on that day, is no reason to allow the application under Section 311 CrPC after a long gap of about seven years. Learned counsel for the petitioner has relied upon S.K.Kapoor vs. Municipal Corporation of Delhi 2010 (7) AD (Delhi 572; Mangey Khan vs. State (NCT of Delhi) 2009 (4) JCC 2506; and Vinay Kumar vs. State 2007 (4) JCC 2683, in support of his contentions.

5. On behalf of State, it has been submitted that the discretion has been exercised by the Court judicially taking into consideration that at the time of examination of material witnesses, the counsel provided from Legal Aid did not appear and in the circumstances, the Court may at the most award some cost to the petitioner for the inconvenience being caused to him for appearing again and again in the court for cross examination.

6. I have considered the case law relied upon by the petitioner. In the case S.K.Kapoor vs. Municipal Corporation of Delhi (Supra), the petitioner declined to avail the opportunity to cross

examine a witness either himself or by engaging a counsel and in that circumstance, it was observed that he cannot be permitted to do so at the belated stage without offering any sufficient cause or justification for not doing so when the opportunity was so granted.

7. In the case Mangey Khan vs. State (NCT of Delhi) (Supra), the request to recall the witnesses for cross examination was declined as the reason for recalling the witnesses was that the material witnesses were not effectively cross examined by the petitioner's counsel.

8. In the report Vinay Kumar vs. State (Supra) request to recall the witnesses for cross examination was declined in view of the fact of the case that cross examination of PW2 and 3 was not completed despite several opportunities being granted and PW-3 was a Cancer Patient aged about 60 years and the witnesses had been appearing for more than three years before the Court except on few occasions, in that circumstance the Court observed that the time of the witnesses was equally precious and they cannot be asked to come time and again to the Court.

9. The facts and circumstances of the present case are just entirely different. Here, it is a matter of record that PW-1 Ved Prakash Sharma - petitioner herein appeared in the Court only once and on that day, the accused was not represented through any counsel. On being asked by the Court, the accused cross examined the witness without any legal assistance. So none of the authorities relied upon by learned counsel for the petitioner and referred to above can be of any help to him.

10. The question that arises for consideration is if his prayer to recall the material witnesses for cross-examination after he was able

to engage a private counsel has rightly been allowed by the Court to provide him a fair trial and whether failure to get the material witnesses cross-examined without legal assistance has caused prejudice to the accused.

11. The petitioner has also placed on record the copies of the proceedings of the Trial Court which reveal that after being summoned by the Court, the accused was regularly appearing before the Court. When the case was at the stage of charge on 18.07.2002, he requested for legal aid and then proceedings dated 27.09.2002 reveal that till that date, legal aid was not provided. Thereafter, the case was also transferred. On 17.03.2004 legal aid counsel Mr.Amir Khan appeared along with accused before the Court informing the Court that he has been appointed in this case. On the date fixed for charge, learned counsel from legal aid was reported to be out of station. Even on 24.08.2004 when the charge was framed against the accused, he was unrepresented. Further proceedings of the Court dated 02.03.2005, 25.08.2005, 25.09.2006 reveal that the counsel was not present on that day. The proceedings dated 27.09.2007 reveal that legal aid counsel provided to him was not available and thereafter also, the accused was appearing but legal aid counsel was not appearing on all the subsequent dates. When the case was fixed for recording the statement of accused under Section 313 CrPC on 25.04.2011, at the fag end of the trial, the accused engaged counsel who moved an application under Section 311 CrPC praying for recalling of PW-1, 4, 5 and 6 for cross examination.

12. I find it advantageous to refer to the decision of this Court in the case Lakhmi & Ors. vs. The State 1996 I AD (Delhi) 578

wherein the application under Section 311 CrPC moved by the accused to recall PW-1 besides other witnesses for cross examination was declined by learned Trial Court. That order was impugned before this court. Perusal of the record revealed that the contention of the petitioner about non-availability of his counsel at the time of cross examination of PW-1 and that his counsel came to Court only when PW-2 Shiv Narain was cross examined, was not found to be correct. Rather, the record reflected that opportunity was granted to the defence counsel to cross examine PW-1 which was not availed of. The Court considered the fact that PW-1 Krishan Kumar was an extremely material witness and in the absence of his cross examination, his testimony could greatly prejudice the defence. In para 5 o the judgment, it was held as under :- '5. Undoubtedly, the decision and the discretion in regard to the application which falls within the first part of Section 311 of the Code of Criminal Procedure is that of the trial court, but then in matters like these, the role of the trial Magistrates is not akin to an uninterested by-stander. The very width of the discretion vested in him requires of him a corresponding caution. The goal is to do complete justice. And I do feel that here is a case where the learned Magistrate lost the grip. The cross examination of the witness would obviously enable the court to arrive at the truth and ultimately to a just conclusion. The failure was of the counsel. Let the petitioners not suffer for that. Consequently, the application is allowed. Let the learned Metropolitan Magistrate re-summon PW-1 Krishan Kumar on a date convenient to him for cross examination by the present petitioners. This disposes of the petition.'

13. Here in the present case the learned Trial Court has rightly considered the circumstances of the case taking note of the fact that the legal aid counsel provided to the accused to defend him was not appearing and has exercised his discretion in a judicious manner by

permitting the accused to recall PW-1, 4, 5 and 6 for cross examination.

14. The Apex Court in the case Hussain @ Julfikar Ali (Mohd.) vs. State 2012 AD (Cri.) (SC) 401 in similar situation where the appellant remained unrepresented throughout the trial, while remanding the case to the Trial Court for fresh disposal after providing necessary assistance, emphasized the need to provide legal assistance as under :-

'17. The prompt disposition of criminal cases is to be commended and encouraged. But in reaching that result, the accused charged with a serious offence must not be stripped of his valuable right of a fair and impartial trial. To do that, would be negation of concept of due process of law, regardless of the merits of the appeal. The Cr.P.C. provides that in all criminal prosecutions, the accused has a right to have the assistance of a counsel and the Cr.P.C. also requires the court in all criminal cases, where the accused is unable to engage counsel, to appoint a counsel for him at the expenses of the State. Howsoever guilty the appellant upon the inquiry might have been, he is until convicted, presumed to be innocent. It was the duty of the Court, having these cases in charge, to see that he is denied no necessary incident of a fair trial. In the present case, not only the accused was denied the assistance of a counsel during the trial and such designation of counsel, as was attempted at a late stage, was either so indefinite or so close upon the trial as to amount to a denial of effective and substantial aid in that regard. The Court ought to have seen to it that in the proceedings before the court, the accused was dealt with justly and fairly by keeping in view the cardinal principles that the accused of a crime is entitled to a counsel which may be necessary for his defence, as well as to facts as to law. The same yardstick may not be applicable in respect of economic offences or where offences are not punishable with substantive sentence of imprisonment but punishable with fine only. The fact that the right involved is of such a character that it cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all our judicial proceedings. The necessity of

counsel was so vital and imperative that the failure of the trial court to make an effective process of law. It is equally true that the absence of fair and proper trial would be violation of fundamental principles of judicial procedure on account of breach of mandatory provisions of Section 304 of CrPC.'

15. The learned M.M. has provided an opportunity to the accused to give him just and fair trial. Denying the opportunity to get material prosecution witnesses cross-examined through counsel would have caused serious prejudice to the accused. The impugned order being just and fair, does not call for any interference by this Court.

16. Accordingly, the present petition being devoid of merit, is hereby dismissed.

PRATIBHA RANI, J JULY 19, 2012 'st