Delhi High Court
D R Sharma vs Gautam Cable Industries & Ors. on 25 July, 2016
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.MC 1338/2011
% Reserved on: July 14, 2016
Decided on: July 25, 2016
D R SHARMA ..... Petitioner
Through: Mr. Harpreet Singh, Sr. Standing
Counsel.
versus
GAUTAM CABLE INDUSTRIES & ORS. ..... Respondents
Through: Mr. Rajat Aneja, Ms. Chandrika
Gupta, Advs.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
1. The present petition challenges the order dated 10th May, 2010 passed
by learned Trial Court dismissing the application of the petitioner under
Section 311 Cr.P.C.
2. The matter was listed for final hearing before the learned Trial Court
on 3rd November, 2010 however after the present petition was filed, the
proceedings before the learned Trial Court could not take place as this Court
was pleased to summon the trial Court record vide order dated 4 th October,
2012.
3. A perusal of the order sheets of learned Trial Court would reveal that
summons were issued on the complaint on 9th June, 2000 for offences
punishable under Sections 9 and 9AA of Central Excise Act. Finally all the
accused appeared before the learned Trial Court and case was fixed for pre-
charge evidence on 4th July, 2001 when no witness of the petitioner was
present. Again on 6th December, 2001, no witness was present. On 15th
March, 2002 one witness was present whose statement was recorded as PW-
1 however no other witness was present. Same was the situation on 28 th
August, 2002 and 8th January, 2003 when no witness of the prosecution was
present. On 4th June, 2003 one witness D.K. Sharma was present however
learned Spl.P.P stated that the said witness had been wrongly summoned as
his evidence was already recorded, thus the witness was discharged. After
partly recording statement of PW-2 on 30th October, 2003, no witness was
present on 9th March, 2004. On 10th August, 2004 and 27th January, 2005
PW-3 was examined. On 27th July, 2005 PW-2 was present however the
original documents were not produced by the department. On 10th January,
2006 the learned Trial Court held that the proceedings qua accused No.5
abated as he had passed away and listed the matter for remaining prosecution
evidence on 18th February, 2007. Again on that date, no witness was present
and thus last and final opportunity was granted to the petitioner to lead
evidence on 23rd November, 2007, subject to payment of cost of `2000/-.
On 23rd November, 2007 neither the cost was deposited nor the person
authorized on behalf of the petitioner/complainant appeared. Thus, show
cause notice was issued to the Joint Commissioner, Excise with direction to
appear and to show cause why the witnesses were not being examined and
why there was no appearance on behalf of the Spl.P.P. On 15 th February,
2008, two witnesses were present and partly examined however their
examination-in-chief was required to be deferred as original documents were
not placed on record.
4. Since the petitioner challenged the order dated 23rd November, 2007
passed by learned ACMM imposing cost of `2,000/-, the file was sent to
learned Sessions Court which dismissed the revision petition and sent back
the file. Thus on 14th May, 2008 the matter had to be adjourned for this
reason. An application was filed by the petitioner seeking marking of
presence of witness S.K. Behl in the order dated 23rd November, 2007 and
withdrawal of notice to the Joint Commissioner, Excise. Vide order dated
10th December, 2007 the Court noted that when the case was called out, there
was no appearance on behalf of the department, thus the presence of Mr.
S.K. Behl cannot be noted, however the show cause notice to Joint
Commissioner, Excise was withdrawn. Again on 4th September, 2008 none
was present on behalf of the petitioner nor was any witness present. Thus,
the evidence of the petitioner was closed.
5. An application under Section 311 Cr.P.C was filed by the petitioner
seeking recalling of the witnesses. The same was dismissed by the
impugned order. As noted above, the orders passed by the learned Trial
Court clearly reflect that there has been continuous non-appearance on
behalf of the petitioner and despite opportunities no efforts were made to
bring the witnesses. Despite having issued show cause notice to the Joint
Commissioner, Excise, no serious effort was made to examine the witnesses.
Though the complainant/petitioner pressed an application for withdrawal of
show cause notice to Joint Commissioner, Excise but did not bother to
examine the witnesses. The petitioner was more concerned about the waiver
of the cost imposed and exemption of the Joint Commissioner from personal
appearance.
6. It is bounded duty of the Court to ensure speedy trial. The complaint
was pending for pre-charge evidence for more than 7 years and out of 13
witnesses only 5 witnesses were examined and that too partly. The
impugned order passed by the learned Trial Court is in conformity with the
mandate of the Supreme Court in the decision reported as 2002 (4) SCC 578
P. Ramachandra Rao vs. State of Karnataka wherein it was held as under:
21... The Criminal Procedure Code, as it stands,
incorporates a few provisions to which resort can be had for
protecting the interest off the accused and saving him from
unreasonable prolixity or laxity at the trial amounting to
oppression. Section 309, dealing with power to postpone or
adjourn proceedings, provides generally for every inquiry
or trial, being proceeded with as expeditiously as possible,
and in particular, when the examination of witnesses has
once begun, the same to be continued from day to day until
all the witnesses in attendance have been examined, unless
the Court finds the adjournment of the same beyond the
following day to be necessary for reasons to be recorded.
Explanation-2 to Section 309 confers power on the Court to
impose costs to be paid by the prosecution or the accused,
in appropriate cases, and putting the parties on terms while
granting an adjournment or postponing of proceedings. This
power to impose costs is rarely exercised by the Courts,
Section 258, in Chapter XX of Code of Criminal Procedure
on Trial of Summons-cases, empowers the Magistrate trying
summons cases instituted otherwise than upon complaint,
for reasons to be recorded by him, to stop the proceedings
at any stage without pronouncing any judgment and where
such stoppage of proceedings is made after the evidence of
the principal witnesses has been recorded, to pronounce a
judgment of acquittal, and in any other case, release the
accused, having effect of discharge. This provision is almost
never used by the Courts. In appropriate cases, inherent
power of the High Court, under Section 482 can be invoked
to make such orders, as may be necessary, to give effect to
any order under the Code of Criminal Procedure or to
prevent abuse of the process of any Court, or otherwise, to
secure the ends of justice. The power is wide and, if
judiciously and consciously exercised, can take care of
almost all the situations where interference by the High
Court becomes necessary on account of delay in
proceedings or for any other reason amounting to
oppression or harassment in any trial, inquiry or
proceedings. In appropriate cases, the High Courts have
exercise their jurisdiction under Section 482 of Code of
Criminal Procedure for quashing of first information report
and investigation, and terminating criminal proceedings if
the case of abuse of process of law was clearly made out.
Such power can certainly be exercised on a case being
made out of breach of fundamental right conferred by
Article 21 of the Constitution. The Constitution Bench in
A.R. Antulay's case referred to such power, vesting in the
High Court (vide paras 62 and 65 of its judgment) and held
that it was clear that even apart from Article 21, the Courts
can take care of undue or inordinate delays in criminal
matters or proceedings if they remain pending for too long
and putting to an end, by making appropriate orders, to
further proceedings when they are found to be oppressive
and unwarranted.
29. For all the foregoing reasons, we are of the opinion
that the Court could not have prescribed periods of
limitation beyond which the trial of a criminal case or a
criminal proceedings cannot continue and must mandatorily
be closed followed by an order acquitting or discharging
the accused. In conclusion we hold:
(1)....
(2)....
(3)....
4)....
(5) The Criminal Courts should exercise their available
powers, such as those under Sections 309, 311 and 258, of
Code of Criminal Procedure to effectuate the right to
speedy trial. A watchful and diligent trial judge can prove to
be better protector of such right than any guidelines. In
appropriate cases jurisdiction of High Court under
Section 482 of Code of Criminal Procedure and
Articles 226 and 227 of Constitution can be invoked seeking
appropriate relief or suitable directions.
7. The decision of the 7 Judges Bench of the Supreme Court in P.
Ramachandra Rao (supra) though holds that no time frame for conclusion of
the trial can be fixed however the same does not take away the power of the
Trial Court to close the evidence if the facts and circumstances of the case
warrant. The decision in P. Ramachandra Rao (supra) and Abdul Rehman
Antulay Vs. R.S. Nayak AIR 1992 SC 1701 preserve the right of an accused
for a speedy trial. Thus if despite repeated opportunities witnesses are not
brought by the prosecution or defense and the Trial Court closes its
evidence, it commits no illegality.
8. During the course of arguments this Court raised a query to the
learned counsel for the petitioner as to whether he was in a position to
produce all its witnesses expeditiously on one or two dates, when the learned
counsel for petitioner was clueless as it was not even known as to how many
witnesses are now available for examination. Considering the conduct of the
complainant during trial, I find no infirmity in the impugned order
dismissing the application of the petitioner under Section 311 Cr.P.C.
9. Petition is dismissed. Trial Court record be sent back forthwith with
directions to proceed with the matter in accordance with law.
(MUKTA GUPTA)
JUDGE
JULY 25, 2016
'v mittal'
