Delhi High Court
Ombir Singh vs State on 4 December, 2015
Author: S. P. Garg
* IN THE HIGH COURT OF DELHI AT NEW DELHI
DECIDED ON : DECEMBER 04, 2015
+ CRL.A. 303/2015 & Crl.M.B.3077/15, 10122/15
OMBIR SINGH ..... Appellant
Through : Mr.Anup J.Bhambhani,
Sr.Advocate, with Mr.B.V.Niren
and Mr.Prasouk Jain, Advocates.
versus
STATE ..... Respondent
Through : Mr.Amit Ahlawat, APP.
CORAM:
HON'BLE MR. JUSTICE S.P.GARG
S.P.GARG, J. (ORAL)
Crl.M.A.3540/2015
(1) Present application under Section 391 read with Section 482
Cr.P.C. has been filed by the appellant to seek directions for leading
additional evidence. It is contested by the respondent.
(2) I have heard the learned counsel for the parties and have examined
the file. The appellant was convicted under Sections 7 and 13(2) read
with Section 13(i) (d) of the PC Act by a judgment dated 10.02.2015 in
case FIR No.05/2012 at Police Station Anti Corruption Branch. By an
order dated 12.02.2015, he was awarded various prison terms with fine.
(3) The appellant set up plea of alibi and examined two defence
witnesses i.e.Devender Singh Bisht (DW-1) and S.D.Majhi (DW-2). The
Trial court in the impugned order rejected the said defence.
(4) The appellant intends to examine certain more witnesses from his
department to prove that at the relevant time, he was not present at his
office and had gone in the Zonal office of the Weights and Measures
Department, Tilak Nagar on official duty. He further intends to examine a
witness from Idea Cellular Ltd. to prove call details and location of
Mobile No.9891620790 which was carried by him and number of calls
were exchanged during his presence there.
(5) The Trial Court record reveals that after the appellant's 313 Cr.P.C.
statement was recorded on 11.12.2014, the case was adjourned for
defence evidence for 09.01.2015. On 17.12.2014, the appellant moved
two applications one for summoning witnesses from office and other for
summoning Call Details Record of Mobile No.9891620790. The
appellant, at first instance, restricted his prayer to summon only Devender
Singh Bisht (DW-1) and S.D.Majhi (DW-2), who were subsequently
examined. He reserved his right to summon other witnesses after
examination of the said two witnesses, if the need so arose. This
right/liberty was, however, never exercised by him subsequently. The
appellant was permitted to summon Call Details Record of dated
16.02.2012 from 9.00 a.m. to 1.00 p.m. Summons were issued to Nodal
Officer, Idea Cellular Ltd. to produce the CAF and CDR of Mobile
No.9891620790 of dated 16.02.2012 and also the cell ID chart, for
09.01.2015. On that date summons issued to Nodal Officer, Idea Cellular
Ltd. were received back with the report that the address was incomplete.
The appellant was directed to furnish fresh and complete address and the
matter was adjourned for 23.01.2015. On that date DW-1 and DW-2 were
examined. Appellant's counsel recorded statement to close the defence
evidence. Apparently, he did not ask to summon the record from Idea
Cellular Ltd. again after furnishing fresh address. Obviously, the
appellant was at fault in not examining the said witness during trial.
(6) From the very inception the appellant had taken the plea of 'alibi'
and at one stage had prayed the court to summon the relevant record
pertaining to his Mobile No.9891620790. Necessary summons were also
issued to Idea Cellular Ltd for 09.01.2015. However, the process server
returned it unexecuted due to incomplete address. Again, summons were
issued to Nodal Officer, Idea Cellular Ltd. at P-26, Near Alka Hotel,
Cannaught Place, New Delhi for 23.01.2015. Summons were received
back with the report that office of Ideal Cellular Ltd. had shifted to A-68,
Sector 64, Noida, opposite Fortis hospital. The concerned officials at
Cannaught Place declined to receive the summons. No further process
was issued at the address at Noida.
(7) In my considered view, examination of the witness from Idea
Cellular Ltd. to prove the Call details/location at the relevant time
pertaining to Mobile No.9891620790 is necessary for the just decision of
the case. Though the appellant is at fault for non-examining the witness
during trial despite coming to know the address where Idea Cellular
Ltd.was to be served, in the interest of justice and to get the case decided
on merits, the appellant is permitted to produce additional evidence and to
summon the said witness to prove the call details/location etc. It will
cause no prejudice to the respondent as this request was made by the
appellant during trial which was not carried forward.
(8) Accordingly, the parties shall appear before the learned Trial court
on 14.12.2015 to seek date for producing additional evidence under
Section 391 Cr.P.C. The Trial Court shall fix the date to record the
statement of the said witness from Idea Cellular Ltd. Necessary steps will
be taken by the appellant to summon the witness. The Trial court after
recording the statement of the witness in the presence of both the parties
shall send back the complete record to this Court.
The application stands disposed of.
CRL.A. 303/2015 & Crl.M.B.3077/15, 10122/15
(1) The matter be listed before this Court on 3rd March, 2016.
(2) Trial Court record along with the copy of the order be sent back
forthwith and be returned to this Court before the next date of hearing.
(3) Interim orders to continue till the next date of hearing before this
Court.
(S.P.GARG)
JUDGE
DECEMBER 04, 2015
sa
