Nitin @ Menu vs State
2014 Latest Caselaw 4090 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Date of decision: 2nd September, 2014

+       CRL. M.C. No.3056/2014

NITIN @ MENU                                             ..... Petitioner
                            Through:       Mr. Ankur Singhal, Advocate.

                            versus

STATE                                                  .....Respondent
                            Through:       Mr. Feroz Khan Gazi, APP for
                                           the State.

CORAM:
HON'BLE MR. JUSTICE VED PRAKASH VAISH

VED PRAKASH VAISH, J. (ORAL)

1. The petitioner by filing the present petition under Section 482 of Code of Criminal Procedure, 1973 (hereinafter referred to as „Cr.P.C.‟) has assailed the order dated 11.07.2014 passed by learned Additional Sessions Judge, Dwarka Courts, New Delhi whereby the application under Section 311 Cr.P.C. filed by the petitioner was dismissed.

2. In short, the facts giving rise to the present petition are that the petitioner is facing trial in case FIR No.190/2009 under Sections 302/307/364/201/147/148/149 IPC read with Sections 25/27/54/59 of Arms Act registered at P.S. Kapashera, New Delhi. The charges under aforementioned sections was framed on 21.5.2011. The prosecution evidence was recorded. Thereafter, the petitioner moved an application under Section 311 Cr.P.C. for recalling of eight prosecution witnesses, which was dismissed by learned ASJ/Special Judge (NDPS), Dwarka.

Feeling aggrieved by the said order, the petitioner has filed the present petition.

3. Learned counsel for the petitioner contends that prosecution has examined 54 witnesses. He submits that the petitioner was represented by some other counsel in the trial court proceedings who moved an application under Section 311 Cr.P.C. for recalling Shri Satya Pal (PW-1), Shri Yoginder (PW-5), Shri Rishi Raj (PW-8), Shri Raj Pal (PW-9), Shri Ashok Kumar (PW-22), Constable Raj Kumar (PW-27), Dr. B.N. Mishra (PW-35) and ASI Dhanesh Kumar (PW-40).

4. Learned counsel for the petitioner further submits that the statement of Satya Pal (PW-1) was recorded by the investigating officer and the other police officials on different dates and his statement under Section 164 Cr.P.C. was also recorded. He also submits that the statement of Satya Pal (PW-1) recorded by police officials is contradictory and other prosecution witnesses have also made self-contradictory statements. He further submits that, constable Raj Kumar (PW-27) is cited as a witness, who is a photographer with crime team but he is not a qualified photographer.

5. Learned counsel for the petitioner has relied upon judgment in „Natasha Singh vs. CBI (State)‟, 2013 (3) JCC 1808 and „P. Sanjeeva Rao vs. State of Andhra Pradesh‟, (2012) 7 SCC 56 and „Bharat Singh Rawat vs. State of NCT of Delhi', Crl.A.No. 830/2013 decided on 12.03.2014

6. Per contra, learned APP for the State submits that the prosecution witnesses, who are sought to be recalled for further cross- examination were examined long back and they were cross-examined

by counsel for all the accused persons. The prosecution witness Satya Pal (PW-1) was examined on 24.11.2010 and thereafter cross- examined by counsel for all the accused persons on various dates. Yoginder (PW-5) was examined on 12.01.2011 and Rishi Raj (PW-8) was examined on 28.02.2011.

7. Learned APP for the State has pointed out that earlier co- accused, Dipesh @ Jonty moved an application under Section 311 Cr.P.C. seeking permission to recall Satya Pal (PW-1),which was allowed on 17.01.2012 by trial court, subject to payment of cost of Rs.10,000/- (Rupees Ten thousand only). Against the said order, the complainant filed Criminal Revision Petition No.73/2012, which was allowed by this Court vide order dated 25.07.2012 and order dated 17.01.2012 was set aside. He also submits that the petitioner has moved an application with a view to delay the trial proceedings.

8. I have carefully considered the submissions made by learned counsel for the petitioner and learned APP for the State and have gone through the copies of statements of prosecution witnesses filed by the petitioner.

9. It is a settled principle of law that power under Section 311 Cr.P.C. are solitary and are intact whereunder any Court by exercising its discretionary authority at any stage of inquiry, trial or other proceedings can summon any person as a witness or examine any person in attendance, though not summoned as a witness or recall or re-examine any person in attendance, though not summoned as a witness, or recall or re-examine any person already examined. It is the plenary power of the Court with a view to meet the ends of justice in a

given case. This power however, has to be exercised with caution and invoked as exigencies of the justice required and to be exercised judiciously with circumspection and consistently with the provisions of Cr.P.C.

10. In Natasha Singh's case (supra) relied upon by learned counsel for the petitioner, it was held as under: -

"14. The scope and object of the provision is to enable the Court to determine the truth and to render a just decision after discovering all relevant facts and obtaining proper proof of such facts, to arrive at a just decision of the case. Power must be exercised judiciously and not capricisously or arbitrarily, as any improper or capricious exercise of such power may lead to undesirable results. An application under Section 311 Cr.P.C. must not be allowed only to fill up a lacuna in the case of the prosecution, or of the defence, or to the disadvantage of the accused, or to cause serious prejudice to the defence of the accused, or to give an unfair advantage to the opposite party. Further, the additional evidence must not be received as a disguise for retrial, or to change the nature of the case against either of the parties.

Such a power must be exercised, provided that the evidence that is likely to be tendered by a witness, is germane to the issue involved. An opportunity of rebuttal however, must be given to the other party.

The power conferred under Section 311 Cr.P.C. must therefore, be invoked by the Court only in order to meet the ends of justice, for strong and valid reasons, and the same must be exercised with great caution and circumspection.

The very use of words such as „any Court‟, „at any stage‟, or „or any enquiry, trial or other proceedings‟, „any person‟ and „any such person‟ clearly spells out that the provisions of this section have been expressed in the widest possible terms, and do not limit the discretion of

the Court in any way. There is thus no escape if the fresh evidence to be obtained is essential to the just decision of the case. The determinative factor should therefore be, whether the summoning/ recalling of the said witness is in fact, essential to the just decision of the case."

11. The Apex Court in „Nisar Khan @ Guddu & Others‟, (2006) 9 SCC 386, has held that naturally, by the time the eye-witnesses were recalled, they were won over either by money, by muscle power by threats or intimidation. We are of the view that no reasonable person properly instructed in law would allow an application filed by the accused to recall the eye-witnesses after a lapse of more than one year that too after the witnesses were examined, cross-examined and discharged.

12, In the instant case the record shows that examination-in-chief of Satya Pal (PW-1) was recorded on 22.11.2010. He was partly cross- examined on behalf of the petitioner on 24.11.2010. Thereafter, he was cross-examined on behalf of the petitioner and other co-accused persons on various dates. Yoginder (PW-5) was examined on 12.01.2011, Rishi Raj (PW-8) was examined on 28.02.2011, Rajpal (PW-9) was examined on 10.03.2011, Ashok Kumar (PW-22) was examined on 03.01.2012, Constable Raj Kumar (PW-27) was examined on 17.01.2012, Dr. B.N. Mishra (PW-35) was examined on 14.12.2012 and SI Dhanesh Kumar (PW-40) was examined on 17.01.2012. The said prosecution witnesses were cross-examined at length on behalf of petitioner as well as other co-accused persons. No sufficient ground has been shown to permit the petitioner to recall

prosecution witnesses for further cross-examination. It appears that the petitioner is trying to fill up the lacuna, which is not permissible in law.

13. Keeping in view of the facts and circumstances of the instant case and the submissions made by learned counsel for the parties, I do not find any illegality or infirmity in the order passed by learned trial court. Accordingly, the petition is dismissed.

(VED PRAKASH VAISH) JUDGE SEPTEMBER 2, 2014 hs