Delhi High Court
Jitender @ Kalia vs The State (Nct Of Delhi) on 23 January, 2013
Author: G.P. Mittal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 23rd January, 2013
+ CRL. M.C. 249/2013
JITENDER @ KALIA ..... Petitioner
Through: Mr. Bankim K. Kulshrestha, Adv.
versus
THE STATE (NCT OF DELHI) ..... Respondent
Through: Ms. Jasbir Kaur, APP for the State.
ASI Ram Goal, PS Mukherjee Nagar.
+ CRL. M.C. 253/2013
JITENDER @ KALIA ..... Petitioner
Through: Mr. Bankim K. Kulshrestha, Adv.
versus
THE STATE (NCT OF DELHI) ..... Respondent
Through: Ms. Jasbir Kaur, APP for the State.
ASI Ram Goal, PS Mukherjee Nagar.
CORAM:
HON'BLE MR. JUSTICE G.P.MITTAL
JUDGMENT
G. P. MITTAL, J. (ORAL)
CRL M.A.851/2013 (Exemption) in CRL. M.C. 249/2013
CRL M.A.860/2013 (Exemption) in CRL. M.C. 253/2013
Exemption allowed, subject to all just exceptions.
The Applications are allowed.
CRL. M.C. 249/2013 & CRL. M.C. 253/2013
1. By virtue of these two Petitions under Section 482 of the Code of
Criminal Procedure, 1973 (Cr.P.C.) the Petitioner invokes the inherent
powers of the Court to summon four witnesses, that is, PW-3 Raj Kumar
Bhati, PW-4 Sumit Nayyar, PW-6 Janesh Kumar and PW-25 SI Ram
Avtar for the purpose of further cross-examination and one Sanjay
Sharma who was cited as a prosecution witness, but was not examined,
for his examination on the ground that earlier said Sanjay Sharma was
son of SI Ram Avtar who was IO of the case. This fact was, however,
not disclosed and, therefore, it was essential to cross examine PW-3 Raj
Kumar Bhati, PW-4 Sumit Nayyar, PW-6 Janesh Kumar, PW-25 SI Ram
Avtar and to examine Sanjay Sharma.
2. The learned Additional Sessions Judge dealt with the contentions at great
length and declined to recall PW-3, PW-4, PW-6 and PW-25 and to
examine Sanjay Sharma as a court witness. The relevant portion of the
impugned order is extracted hereunder:-
".... Coming first to the case of the witness Sanjay Sharma S/o
Ram Avtar (not examined), at the very outset I may note that he
has been cited as a witness by the prosecution and thereafter
dropped. Being a witness of the prosecution it is their prerogative
whether to examine or not to examine this witness and the defence
has no right to compel the prosecution into calling or examining a
particular witness, though it is always open to the accused to call
the said witness cited by the prosecution (and not
examined/dropped by the prosecution) as his own witness which
the accused has chosen not to do and rather, he has sought to
invoke the jurisdiction of this Court vested under Section 311
Cr.P.C. to examine the said witness as a witness of the Court. I
may observe that the only aspect on which the accused seeks to
examine the said witness Sanjay Sharma, is that he was the son of
the Investigating Officer and is known to other witnesses namely
Jainesh, Yogesh Bhati and Inder. In this regard, I may observe
that the Investigating Officer Ram Avtar Sharma (PW25) has
already been cross-examined on this aspect and he has admitted
that Sanjay Sharma is his son who was studying in Satyawati
College. He has also been cross-examined on the aspect that he
and his sons including Sanjay Sharma were residing in the house
of Hari Ram i.e. father of the deceased Anil Badana, which he has
denied. This being the background, the aspect of Sanjay Sharma
being a student of Satyawati College having already come on
record, I do not find any ground to either recall Ram Avtar
Sharma in the Court as a witness or Sanjay Sharma as a court
witness as it is not for this Court to collect evidence for the
defence. Further, the accused has now obtained some replies from
the department under the RTI (on legal queries) but this would not
in any case entitle him to seek the examination of the witnesses
(Ram Avtar Sharma and Sanjay Sharma) on the factual aspects
which have already been brought on record during examination of
the Investigating Officer.
Coming now to the testimony the witnesses PW3 Raj Kuamr Bhati;
PW4 Sumit Nayyar; PW5 Narender Kumar, PW6 Janesh Kumar
and PW25 SI Ram Avtar, I may observe that all the said witnesses
have already been subjected to a sustained and exhaustive cross-
examination as under:-
Sr. Name of the PW No. Date of
No. witness examination &
cross-examination
1. Raj Kumar Bhati PW3 24.5.2001
2. Sumit Nayyar PW4 23.7.2001
3. Janesh Kumar PW6 18.9.2001
4. SI Ram Avtar PW25 4.1.2003
What is it that has prompted the accused now after fourteen years
of the incident and ten years of examination of the above witnesses
and conclusion of the trial, to move this application? It is writ
large that taking advantage of technical ground on which the
Judgment/Sentence have been set aside and the file has been
remanded back for rehearing, a mischievous attempt has been
made by the accused to virtually reopen the trial denovo, which is
nothing but an abuse of the process of law and cannot be
permitted.
The provisions of Section 311 Code of Criminal Procedure cannot
be invoked for filling up the lacunas in the case of the parties
(either prosecution or defence) but give powers to the court to
summon and examine or recall and re-examine any such person if
his evidence appears to it to be essential to the just decision of the
case. The provisions of Section 311 Cr.P.C. are not limited only
for the benefit of the accused and the discretion conferred has to
be exercised judiciously only for arriving at the truth and not on
the whims and fancies of the litigating parties before the Court.
The only attempt of the accused is to delay the finalization and
conclusion of the case on one pretext or the other or else there was
no reason why after the remand of the case, he had been taking
adjournments and then instead of advancing final arguments, this
150 pages application was filed under Section 311 Cr.P.C. It is
apparent that under the garb of this application under Section 311
Cr.P.C. the attempt of the applicant/accused who as per the record
was a Bad Character (BC) of the area, is only to reopen the trial.
Calling public witnesses to the Court on the smallest of pretext and
exposing them to the alleged perpetrator of crime, is nothing sort
of harassment to public persons/witnesses which is something
which the Courts of Law cannot permit. Unless the Court is
satisfied with the bonafides of the applicant and the fact that the
examination of witnesses is essential for a just decision of the case,
applicant cannot be entertained. In the present case, all the
witnesses having been exhaustively cross-examined, no ground had
been raised to justify their recall for these examination on the
aspects which are relevant and essential to the just decision of the
case and this Court cannot permit such an exercise. The applicant
being an abuse of the process of law, is hereby dismissed which is
however, without prejudice to the rights of the accused to raise the
issues so highlighted in the application for the purpose of
assessing and evaluating the credibility of the oral testimonies of
the various witnesses examined by the prosecution, at the stage of
final arguments...."
3. There is no dispute about the proposition of law that under Section 311
Cr.P.C, the Court has wide discretion to summon any witness or recall
any witness, or re-examine any witness at any stage of any inquiry, trial
or other proceedings. At the same time, the powers under Section 311
Cr.P.C. have to be exercised only to prevent failure of justice and for a
just decision of the case. The main ground taken up by the Petitioner for
recalling PW-3 Raj Kumar Bhati, PW-4 Sumit Nayyar, PW-6 Janesh
Kumar and PW-25 SI Ram Avtar was that the prosecution had concealed
the facts that Sanjay Sharma was son of the IO SI Ram Avtar Sharma.
4. The learned ASJ referred to the testimony of PW-25 SI Ram Avtar
Sharma who was cross-examined on this aspect and he admitted that
Sanjay Sharma was his son and was studying in Satyawati College. The
learned ASJ noted that PW-3 was examined in the Court on 24.05.2001,
PW-4 was examined on 23.07.2001, PW-6 was examined on 18.09.2001
and PW-25 was examined on 04.01.2003. Thus, the Petitioner already
knew that Sanjay Sharma was son of SI Ram Avtar Sharma . The learned
ASJ also observed that the Petitioner had the opportunity to summon
Sanjay Sharma in his defence who was cited as a prosecution witness,
who was not examined, but that was not done.
5. The Petitioner has not been able to make out a case that further cross-
examination of PW-3, PW-4, PW-6 and PW-25 and examination of
Sanjay Sharma is in the interest of justice or for just decision of the case.
The learned ASJ rightly observed that recalling of these witnesses for the
purpose of further cross examination would mean reopening of the whole
case. The application under Section 311 Cr.P.C. was rightly dismissed.
6. In the circumstances, I am not inclined to invoke powers of this Court
under Section 482 Cr.P.C. to recall the witnesses as prayed for by the
Petitioner.
7. The Petitions are dismissed.
8. Pending Applications also stand disposed of.
(G.P. MITTAL)
JUDGE
JANUARY 23, 2013
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