Delhi High Court
Rajender Sharma vs The State Govt Of Nct Of Delhi & Anr. on 5 January, 2018
$~10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 05.01.2018
+ CRL.M.C. 4812/2017 & Crl. M.A. 19186/2017
RAJENDER SHARMA ..... Petitioner
versus
THE STATE GOVT OF NCT OF DELHI & ANR ..... Respondents
Advocates who appeared in this case:
For the Petitioner : Mr. O.P. Gulabami, Adv.
For the Respondents : Mr. Mukesh Kumar, Addl. PP for the
State with SI Inderpal
Mr. Pawan Sharma, Adv. for R-2
CORAM:-
HON'BLE MR JUSTICE SANJEEV SACHDEVA
JUDGMENT
05.01.2018
SANJEEV SACHDEVA, J. (ORAL)
1. The petitioner/accused is aggrieved by the order dated
25.08.2017 whereby the application of the petitioner under Section
311 of the Cr.P.C for recall of CW-1 i.e. Meena Tyagi (the
complainant) and CW-2 Nutan Tyagi (husband of the complainant)
for further cross examination has been rejected.
2. The contention of the petitioner is that CW-2 was not cited as a
witness, however, subsequently, his testimony was recorded. It is
further contended that CW-2 in his testimony has made statements
which are at variance to the statement made by CW-1 and as such
there is necessary to recall CW-1 for cross-examination.
3. By the impugned order, the Trial Court had declined to accede
to the prayer on the ground that the petitioner had sufficient time to
cross examine the witnesses and to lead his evidence. It was noticed
that the petitioner has filed the said application only when the final
arguments were being heard. When the Respondent pointed out to the
fallacy in the defence of the petitioner, the subject application was
filed.
4. Perusal of the record shows that examination in chief of CW 1
was recorded on 04.10.2012 and CW-1 was partly cross examined on
the said date. Thereafter further cross-examination was recorded on
21.05.2015 i.e. after a period of 2½ years. The testimony of CW-2
was recorded on 17.03.2016 and CW-2 was cross-examined on
01.07.2016 i.e. after nearly four months. The above dates reveal that
sufficient time was available with the petitioner for the purposes of
preparing for the cross-examination and for completely and
effectively cross-examining the said two witnesses. The record of
evidence shows that the said witnesses were cross-examined at length.
The said application, inter-alia, seems to have been filed on account of
change of counsel.
5. Mere change of counsel is no ground for allowing an
application under Section 311 Cr.P.C. No doubt, this Court has
sufficient discretionary power to recall a witness at any stage,
however, the facts of the present case do not justify the exercise of the
discretionary power. Record reveals that sufficient time was available
to the petitioner to cross-examine the witnesses and in fact the
petitioner has already availed of the opportunity to cross-examine the
witnesses. Moreover, the subject application was also filed after one
year of the recording of the cross examination of the CW2 and after
liberty was granted to the petitioner to lead defence evidence.
6. In view of the above, I find no infirmity in the impugned order.
The petition is accordingly dismissed.
SANJEEV SACHDEVA, J
JANUARY 05, 2018
'rs'
