Anupam Kumar Didwania vs H.S. Toki
2014 Latest Caselaw 4453 Del

*               IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                        Date of decision: 15th September, 2014

+       CRL.M.C. No.2133/2014

ANUPAM KUMAR DIDWANIA                                          ..... Petitioner
                Through:                     Mr. A.K. Babbar, Advocate.

                         versus

H.S. TOKI                                                    .....Respondent
                                  Through:   Mr. Kamal Sawhney with Mr.
                                             Sanjay Kumar, Advocates.


CORAM:
HON'BLE MR. JUSTICE VED PRAKASH VAISH


VED PRAKASH VAISH, J. (ORAL)

1. This is a petition filed under Section 482 of Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.') read with Article 227 of the Constitution of India against order dated 04.04.2014 passed by learned Additional Sessions Judge (Central), Delhi whereby the revision petition filed by the petitioner was dismissed.

2. Brief facts giving rise to the present petition are that the petitioner is facing trial in complaint case bearing CC No. 10/4/2010 under Seciton 276-C(2) of Income Tax Act for the assessment year, 1995-1996. The complaint was filed after obtaining requisite sanction dated 31.01.2007 from the Commissioner of Income Tax, Central Circle-25, New Delhi. The evidence of complainant, Mr. H.S. Toki was recorded and the case was fixed for defence evidence. The petitioner moved an application

under Section 311 of Cr.P.C. for recalling prosecution witness namely, Mr. H.S. Toki for further cross-examination. The said application was dismissed by learned trial court vide order dated 02.04.2014.

3. Aggrieved by the said order, the petitioner preferred Criminal Revision petition bearing No.26/14, which was dismissed by learned Additional Sessions Judge vide impugned order dated 04.04.2014.

4. Feeling aggrieved by order dated 04.04.2014, the petitioner has preferred the present petition.

5. Learned counsel for the petitioner submits that the petitioner filed an appeal bearing ITA No.2138(Mds)/2006 for the Assessment year 1995-96 before the Income Tax Appellate Tribunal 'A Bench', Chennai. The said appeal was disposed of on 23.10.2013 and the matter was remanded back to the Assessing Officer to re-do the assessment afresh, after hearing the assessee and examining the evidences and explanations placed by the assessee before the assessing authority. He also submits that the respondent/ complainant has proved sanction order dated 31.01.2007 issued by the Commissioner and it is not clear whether the fact regarding filing of appeal before the income tax appeal was placed before sanctioning authority or not. The said appeal was disposed of on 23.10.2013 and the copy of order dated 23.10.2013 has already been placed on record. He further submits that he wants to put only one question to the witness, Mr. H.S. Toki as to whether the filing of appeal by the petitioner before the Income Tax Appellate Tribunal was brought to the notice of the sanctioning authority before grant of sanction or not.

6. The provisions of Section 311 of Cr.P.C. are solitary and are enacted 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 and re-examine a person already examined. It is the plenary power of the Court with a view to meet the ends of justice in a given case. The power has, however, to be exercised with caution and invoked as exigencies of justice require and to be exercised judiciously with circumspection and consistently with the provisions of Cr.P.C.

7. During the course of arguments, learned counsel for the respondent submits that he has no objection if the petitioner is permitted to recall the prosecution witness namely, Mr. H.S. Toki and question with regard to the filing of appeal before the Income Tax Appellate Tribunal is put to him.

8. In the light of the aforesaid discussion, the petition is allowed and the impugned order dated 04.04.2014 passed by learned Additional Sessions Judge (Central), Delhi and the order dated 02.04.2014 passed by learned trial court are set-aside. The petitioner is permitted to recall the prosecution witness, Mr. H.S. Toki for further cross-examination. However, it is made clear that only one effective opportunity will be given to the petitioner and further cross-examination will be confined only to the fact whether the filing of appeal by the petitioner before the Income Tax Appellate Tribunal was brought to the notice of the sanctioning authority. The petitioner is directed to appear before trial court on 30.09.2014.

9. With the aforesaid observations, the petition is disposed of.

Crl. M.A. No.7144/2014 The application is dismissed as infructuous.

(VED PRAKASH VAISH) JUDGE SEPTEMBER 15, 2014 hs