Fazal Khan vs State
2012 Latest Caselaw 6327 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+           CRL.M.C.NO.3536/2012 & CRL.M.A. 17497/2012

                                    Date of Decision: 19.10.2012

FAZAL KHAN                                       ...... Petitioner
                         Through: Mr.Gurbax Singh, Adv.

                               Versus

STATE                                             ...... Respondent
                         Through: Mr. Sunil Sharma, APP


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

V.K. SHALI, J. (Oral)

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

order dated 20.9.2012 by virtue of which the application

of the petitioner u/S 311 Cr.P.C. for recalling certain

witnesses was rejected.

2. I have heard Mr.Singh, learned counsel for the petitioner

as well as learned APP for the State.

3. Mr.Singh, has contended that examination of the defence

witnesses namely Fazru Nambardar, Kamruddin, Imam

and Jamshed whose names were given in the application

filed by the petitioner under Section 311 Cr.P.C. is very

essential for the defence of the accused. It was

contended by the learned counsel that no doubt in the

statement recorded under Section 313 Cr.P.C., the

accused had stated that he does not want to examine

any defence witnesses but this statement was made

when the proxy counsel for the accused was present. It

was stated that this statement of the accused should not

be taken to his detriment and he may be permitted to

examine the defence witnesses. So far as the relevance

of the defence witnesses is concerned, it was contended

that these witnesses belonged to the Village of the

petitioner, who will testify that the petitioner was not

present at the place of incidence and he had been picked

up from his Village after the incidence. The petitioner in

this regard has drawn the attention of the Court to the

judgment of the Apex Court in case titled P.Sanjeeva

Rao Vs. State of A.P. AIR 2012 SC 2242 to contend

that the witnesses in the said case were called for the

purpose of cross examination on the ground that the

object of Section 311 Cr.P.C. was to prevent the failure

of justice on account of mistake of either party to bring

on record the valuable evidence or to clear any ambiguity

in the statement of the witnesses.

4. In the instant case also, the learned counsel has

contended that the petitioner has no doubt stated in his

statement under Section 313 Cr.P.C. that he does not

want to examine any defence witnesses but this should

not be taken as an estoppel against the petitioner to

foreclose his right to adduce evidence.

5. I have carefully considered the submissions as well as

gone through the record.

6. No doubt there is no dispute about the object of

incorporating Section 311 in the Cr.P.C. which is to

prevent the failure of justice on account of mistake of

either of the parties to bring on record the valuable

evidence or to prevent any ambiguity being left on the

record which may not be conducive in the interest of

justice but merely because that is the object of law, it

cannot be said that every time the accused files an

application u/S 311 Cr.P.C. and that too at whatever

stage, it has to be necessarily allowed. In the instant

case, the purpose of examining the defence witnesses

given by the petitioner is that he was not present at the

spot and was lifted from the Village. Assuming that this

is the defence of the accused/petitioner but then this

defence ought to have been reflected in the light of cross

examination of the prosecution witnesses as well as in

the statement under Section 313 Cr.P.C.

7. The learned counsel for the petitioner has handed over

the statement of PW-26/K.P.Shah and PW-28/ACP

S.P.Gupta who are the material witnesses and in whose

cross examination, the line of defence which has now

been taken does not get reflected. Even the statement

of the petitioner recorded under Section 313 Cr.P.C.,

nowhere states that he was lifted from his Village. On the

contrary, it has come on record that the petitioner was

arrested at the spot and certain articles were also

recovered in pursuance to the disclosure statement

having been made. Therefore, I feel that this statement

which was made on behalf of the accused at the time of

recording of the statement that he does not want to

examine any witnesses in defence was a conscious

decision and was not a mistake on the part of the

accused.

8. The trial court has already observed that the petitioner,

by moving the application u/S 311 Cr.P.C. belatedly

wants to derail the trial. I have no reason to disagree

with the observations made by the trial court because it

is the trial court which passes the order after observing

the conduct of the accused during the course of entire

trial. The very fact that the trial court has observed that

the petitioner is filing this application to derail the trial

must be having some basis for the Court to say so.

9. In view of the aforesaid reasons, I do not find any

infirmity, illegality or impropriety in the order dated

20.9.2012 rejecting the application of the petitioner for

summoning the defence witnesses in pursuance to filing

of an application u/S 311 Cr.P.C. I also do not find any

abuse of the processes of law or any order contrary to

the one which has been passed by the learned Sessions

Judge deserves to be passed in the instant case.

Accordingly, the petition is without any merit and the

same is dismissed.

V.K. SHALI, J.

OCTOBER 19, 2012 RN