Delhi High Court
Inder Kumar vs State Of Nct Of Delhi on 26 February, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
RESERVED ON : 16th JANUARY, 2018
DECIDED ON : 26th FEBRUARY, 2018
+ W.P.(CRL) 20/2015 & Crl.M.A. 59/2015 (Stay)
INDER KUMAR ..... Petitioner
Through: Mr. Alok Bhachawat, Advocate.
versus
STATE OF NCT OF DELHI ..... Respondent
Through: Ms. Kamna Vohra, ASC for the State.
+ W.P.(CRL) 21/2015 & Crl.M.A. 64/2015 (Stay)
INDER KUMAR ..... Petitioner
Through: Mr. Alok Bhachawat, Advocate.
versus
STATE OF NCT OF DELHI & ANR ..... Respondents
Through: Ms. Kamna Vohra, ASC for the State.
CORAM:
HON'BLE MR. JUSTICE S.P.GARG
S.P.GARG, J.
1. Present writ petitions have been preferred by the
petitioner under Article 226/227 of the Constitution of India read with
Section 482 Cr.P.C. to challenge the legality and correctness of orders
dated 21.08.2014 and 14.10.2014 respectively whereby costs `3,500/-
were imposed upon him while allowing the application under Section
311 Cr.P.C. to recall PW-5 (Radhey Shyam). Prayer was also made to
expunge the deprecatory remarks recorded in the impugned orders qua
him.
2. I have heard the learned counsel for the parties and have
examined the file. The petitioner was posted as Addl. Public
Prosecutor in the Court concerned during the relevant period. Cases
vide FIRs No.523/2013 registered under Sections 397/411/34 'State
vs. Rakesh @ Dhillu & Ors.' PS Sunlight Colony and 141/2013
registered under Sections 394/397/34 IPC 'State vs. Bal Ram & Anr.'
PS Greater Kailash were listed for hearing before the said Court. An
application under Section 311 Cr.P.C. was filed for recall of PW-5
(Radhey Shyam). By an order dated 14.10.2014, the application was
allowed and PW-5 (Radhey Shyam) was recalled for examination.
However, costs `3,500/- were imposed and ordered to be recovered
from Mr.Inder Kumar, the learned Addl. Public Prosecutor. The
accused persons therein were acquitted by a judgment dated
21.08.2014. Certain observations qua the work and conduct of the
petitioner were made. Being aggrieved, the petitioner has filed the
instant petitions.
3. From perusal of the file, it reveals that on 27.05.2014, the
petitioner had examined PW-6 (Sehzadi), PW-7 (Radish Ahmad), PW-
8 (Salman), PW-9 (SI Kumar Santosh) and PW-10 (Rajeev Sharda).
Examination-in-chief of PW-5 (Radhey Shyam) was deferred for want
of case property i.e. clothes. Case was adjourned to 24.07.2014 and
PW-5 (Radhey Shyam) was bound down for the said date. On
24.07.2014, the matter was taken up at 04.40 p.m. and PW-11 was
examined. PW-12 was partly examined and further examination was
deferred. The matter was adjourned to 25.07.2014 and it was taken up
at 04.00 p.m. that day; PW-12 was partly examined. Case was
adjourned for 07.08.2014. Certain witnesses were examined on
07.08.2014 and the matter was listed for prosecution evidence for
16.08.2014. On that day, it was informed by the learned Addl. Public
Prosecutor that no more PW was to be examined. Case was listed for
statement of the accused on 03.09.2014. On 11.09.2014, the instant
application was filed to recall PW-5 (Radhey Shyam) as his
examination could not be completed. By an order dated 14.10.2014,
the application was allowed.
4. Imposition of costs of `3,500/- to recall PW-5 (Radhey
Shyam) and its recovery from the salary of the previous Addl. Public
Prosecutor i.e. the present petitioner, is not appropriate and cannot be
justified. At the time of disposal of the application under Section 311
Cr.P.C., the petitioner was not even the Public Prosecutor in the said
Court. For the lapse of the Public Prosecutor (if any) in conducting
the judicial proceedings, the proper authority was the Directorate of
Prosecution. As observed above, PW-5 (Radhey Shyam) was bound
down to appear on a specific date. The Trial Court itself did not note
as to why PW-5 (Radhey Shyam) had not appeared and why no
coercive process was issued to procure his appearance. If due to lapse
or inadvertence, the statement of PW-5 (Radhey Shyam) could not be
recorded, the prosecution was within its right to recall him. There was
no inordinate delay in filing the application under Section 311 Cr.P.C.
Moreover, the costs (if any) could have been upon the State. Its
recovery from the salary of the petitioner without establishing his
negligence and without affording him reasonable opportunity of
hearing cannot be sustained.
5. The learned Presiding Officer while acquitting the
accused persons therein by a judgment dated 21.08.2014 passed
certain remarks against the Addl. Public Prosecutor, who was again
the Public Prosecutor in the said Court that time. The material
prosecution witnesses had turned hostile and were cross-examined by
the learned Addl. Public Prosecutor after seeking Court's permission.
The Trial Court did not agree with certain suggestions put by the
learned Addl. Public Prosecutor to the said witnesses in the cross-
examination and was of the view that it spoiled the case of the
prosecution. The evidence as a whole is to be evaluated to record
acquittal or conviction. Merely because certain suggestions were
given by the learned Addl. Public Prosecutor as per his wisdom in the
cross-examination to the witnesses which the learned Presiding Order
considered irrelevant, did not call for any adverse remarks regarding
his work and conduct.
6. It is relevant to note that the petitioner had lodged a
complaint against learned Presiding Officer to the Learned District &
Sessions Judge, Delhi on 29.08.2014. It is further relevant to note that
in other matters also which were pending before this Court, the
petitioner was burdened with costs to be recovered from his salary.
While disposing Crl.M.C. 2082/2015, the orders dated 15.04.2014,
30.09.2014 and 02.12.2014 qua the petitioner were set aside on
21.07.2015. It was noted therein that the learned judge became
personal due to certain reasons which were not necessary to be
mentioned in the said order.
7. In view of the above discussion, the impugned orders
cannot be sustained and are set aside.
8. Observations regarding the work and conduct of the
petitioner in the impugned judgment also stand deleted and expunged.
9. The writ petitions stand disposed of. Pending
applications also stand disposed of.
(S.P.GARG)
JUDGE
FEBRUARY 26, 2018 / tr
