Delhi High Court
Sandeep Bhatnagar vs State , Govt Of Nct Delhi on 10 July, 2015
Author: Ashutoshkumar
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.REV.P.275/2015
Reserved on: 07.07.2015
% Date of Decision:10.07.2015
SANDEEP BHATNAGAR ..... Petitioner
Through Mr. Jitender Kumar Dhingra, Adv.
versus
STATE , GOVT OF NCT DELHI ..... Respondent
Through Mr.M.P. Singh, APP.
CORAM:
HON'BLE MR. JUSTICE ASHUTOSH KUMAR
ASHUTOSH KUMAR, J:
Crl. M.A. No. 6974/2015.
Exemption allowed subject to just exemptions.
The Application is disposed of accordingly
Crl. Rev. P. 275/2015
1. The revisionist questions the order dated 16.02.2015, passed by
the Ld. ASJ Rohini, in connection with SC No. 40/13 (FIR
No.255/2006, PS Vikaspuri), whereby the prayer made on behalf of
the Petitioner to summon 7 witnesses to be led as defence witnesses
has been partially allowed and only three of such witnesses, namely,
V.K. Dass, Neeta Bhatnagar and the concerned record clerk from the
office of DCP Traffic, have been summoned to be led in defence of
the petitioner.
2. The Petitioner is also aggrieved by the aforesaid order of the
court below, whereby the prayer made under section 91 of the Cr.P.C.
for summoning the record from the office of Delhi Press regarding
"Manohar Kahaniya", published in July 2006, which contained the
photographs of the accused, the chit of paper which was allegedly
given by one of the accused to PW1 (Sandeep Dham) which in turn
was given to the I.O., and the sketch of the accused who had entered
the chamber of PW1 along with the finger print impression of the
accused, taken from the crime scene, has been refused.
3. The Petitioner along with other co-accused persons, were made
accused in FIR No. 255/2006 (PS Vikaspuri). After investigation,
chargesheet was submitted and cognizance was taken. After framing
of the charges against the Petitioner and others, 37 prosecution
witnesses were examined. Thereafter, the statement of the accused
persons, including the Petitioner, was recorded under section 313
Cr.P.C..
4. At that stage, an application was filed on behalf of the
Petitioner, seeking issuance of processes for compelling the
attendance of 7 witnesses, whom the Petitioner wanted to examine as
defence witnesses.
5. The learned court below, vide the impugned order, allowed the
summoning of 3 witnesses namely, V.K. Dass, Neeta Bhatnagar (Wife
of Petitioner) and the concerned record clerk from the office of DCP
traffic.
6. The aforesaid 3 persons were permitted and summoned, as they
were required to be examined with respect to the fact that no recovery
was effected from the house of the Petitioner, and that certain challans
of the vehicle in question were received after the said vehicle was
seized in connection with the present case.
7. The request of the Petitioner for summoning Rajni Tripathi as
defence witness was rejected on the ground that she has already been
examined as PW 31. If at all any information had to be elicited from
her, nothing prevented the Petitioner from cross-examining the
aforesaid witness (refer: State of M.P. vs. Badri Yadav, AIR 2006 SC
1769). The prayer made on behalf of the Petitioner, for summoning
the records of the encounter of one Mukesh Gupta by the U.P. Police
and the press release of the U.P. Police, was declined by the court as it
had no bearing with the facts of the present case. Such documents
were purportedly requested to be summoned for the reason that
aforesaid Mukesh Gupta had been a suspect in the present case as
well. Similarly, the request for summoning the record clerk from the
office of SSP, Allahabad and DGP headquarters, Lucknow have been
rejected.
8. A prayer was made under section 91 of the Cr.P.C. for
summoning the record from the office of Delhi Press with respect to
"Manohar Kahaniya", a magazine which was published in July 2006.
It contained the photographs of the accused persons. The court below
refused to allow such prayer as the prosecution witnesses were
confronted with the magazine and the aforesaid magazines containing
the photographs of the accused were duly taken on record. Whether
the photographs of the accused were taken from the passport or from
somewhere else, therefore, lost all relevance. The prayer was refused
on the additional ground that it would not be material whether the
magazine containing photographs was published prior to test
identification parade of the accused or later.
9. Section 91 of the Cr.P.C. enables the court to order for
production of any document or other things which are necessary or
desirable for the purposes of trial.
10. What is important is that this section, though arms the court
with such powers but those are not unlimited as there are built in
limitations. The sine qua non for exercise of such powers is the
"satisfaction" of the court regarding the desirability and necessity of
summoning such document.
11. The discretion therefore is subject to the satisfaction of the Trial
court and except for very good reasons, the same ought not to be
interfered with.
12. After the evidence for the prosecution in a case is over, an
accused has a right to enter on his defence and adduce any evidence,
to prove his innocence. This does not mean that the prayer of the
accused, for summoning any person to be lead as a defence witness
would be blindly allowed by the court. If the court considers, for
reasons to be recorded, that such an application has been made for the
purpose of vexation or delay or for defeating the ends of justice, the
same could be refused. Section 233 Cr.P.C. is quoted hereunder for
reference and convenience.
233. Entering upon defence.
(1) Where the accused is not acquitted under section
232 he shall be called upon to enter on his defence
and adduce any evidence he may have in support
thereof.
(2) If the accused puts in any written statement, the
Judge shall file it with the record.
(3) If the accused applies for the issue of any process
for compelling the attendance of any witness or the
production of any document or thing, the Judge shall
issue such process unless he considers, for reasons
to be recorded, that such application should be
refused on the ground that it is made for the purpose
of vexation or delay or for defeating the ends of
justice.
Sub clause 3 of section 233 of the Cr.P.C., makes it very clear that
the court has a discretion in the matter and such right of asking the
court for summoning defence witnesses is not unlimited or without
fetters.
13. No doubt, the accused has a statutory right to examine any
defence witness, nonetheless, if the court perceives that the purpose is
dilatory and is not actuated by the reasons for bringing evidence in
defence for unravelling the truth, the court could turn down such a
request.
14. Normally, the court would not reject the request of the accused
to examine important witnesses. But as stated earlier, if the cited
witnesses are not relevant and they are sought to be summoned for
defeating the ends of justice, the court in its discretion can refuse to
summon them, but not without recording reasons.
15. From perusal of the impugned order, it is very evident that the
court below has applied its mind over the issue and cogent reasons
have been accorded for refusing the prayer of the Petitioner for issuing
summons to some of the witnesses cited by him. Whichever witnesses
were required to be lead in defence, have been summoned by the
court.
16. This court finds no patent irregularity or illegality in the order.
17. In view of the above noted discussion, this revision petition is
not fit to be entertained.
18. The Petition is dismissed in limine.
Crl. M.A. No. 6973/2015
In view of the main petition having been dismissed, this
application becomes infructuous.
This application is disposed of accordingly.
ASHUTOSH KUMAR, J
JULY 10, 2015
as
