Delhi High Court
Bhanu Raghav vs State Of Nct Of Delhi on 18 July, 2024
Author: Neena Bansal Krishna
Bench: Neena Bansal Krishna
$~41
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision:18 July, 2024
+ CRL.M.C. 729/2024
BHANU RAGHAV .....Petitioner
Through: Mr. Rohit Rawat, Advocate.
versus
STATE OF NCT OF DELHI .....Respondent
Through: Mr. Amit Ahlawat, APP for the State
with Insp. Shiv Prakash PS Alipur.
CORAM:
HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA
J U D G M E N T (oral)
1. The present Petition under Article 227 of the Constitution of India
read with Section 482 of the Code of Criminal Procedure (hereinafter
referred to as "Cr.P.C, 1973"), has been filed on behalf of the petitioner for
setting aside the impugned Order dated 20.12.2023, passed in Crl.Case No.
58535/2016, titled as „State vs. Bhanu Raghav & Ors.', vide which the
learned Trial Court has dismissed the application of the petitioner, for
recalling the complainant PW-7, Sh. Virender Kumar, for further cross-
examination.
2. It is submitted in the Petition that an Application under Section 311
Cr.PC had been filed by the petitioner, for recalling PW-7, Sh. Virender
Kumar, for further cross-examination, which has been dismissed vide the
impugned Order.
3. The petitioner has stated that the FIR bearing No. 129/2015, under
Sections 302/34 of the Indian Penal Code (hereinafter referred to as
"IPC"), registered at Police Station Alipur, in which the Charge-Sheet got
filed and the trial is progressing before the learned Special Judge (NDPS),
District North, Rohini Courts, Delhi. It is at the stage of defence evidence.
4. PW-32, Inspector Mahabir Singh, the IO, who is the Investigating
Officer has been examined on 18.10.2023 and his cross-examination has
been conducted by the petitioner on 02.11.2023. It is asserted that in the
cross-examination, PW-32 has deposed about certain vital and crucial
aspects. During the cross-examination, one video clip was played, which
was the part of the Charge-Sheet wherein one Sardarji, is seen holding a
video-camera, who is the team member of the deceased and the complainant,
during the wedding function. Subsequently, on being asked, PW-32,
admitted that the Sardarji was visible with a video camera in the video clip
and was covering the wedding function. PW-32, the IO further admitted that
he had neither interrogated Sardarji nor had he enquired about his presence
from the complainant.
5. The petitioner has submitted that the above stated fact can be clarified
only by the complainant/PW-7, Sh. Virender Kumar, who can explain the
presence of Sardarji.
6. It is further submitted that after going through the facts and
circumstances of the present Case, learned counsel for the petitioner has
observed that certain vital facts of the alleged incident, have not been
properly put to PW-7. Having regard to the gravity and the seriousness of
the alleged charges against the petitioner, it is submitted that the PW-7 needs
to be further cross-examined.
7. It is stated that the petitioner is in judicial custody since 05.02.2015
and was released on Regular Bail by the trial court in April, 2023. During
this period of judicial custody, there was no other person, who could
properly pursue with the previous counsel. Now, after being enlarged on
bail, certain vital facts have been emerged and therefore, the present
application has become necessary and has been filed bonafide.
8. PW-7 is the only eye-witness, who testified in the Court that before
the alleged incident, there was an altercation between the accused persons
and the deceased. Though, no other witness has supported the testimony of
PW-7. There are various contradictions in the testimony of prosecution
witnesses for which further cross-examination of PW-7 has become
imperative on the following aspects:-
Firstly, with respect to the presence of One Sardar Ji
Secondly, with respect to other photographers, who are seen in the
video;
Thirdly, with respect to the factum that the Vidai was covered from
the house of Bride i.e. from Sant Nagar Burari.
Fourthly, with respect to the fact whether altercation took place
between the Sardarji and the deceased Raj Kumar.
Fifthly, with respect to the White Maruti Car owned in the name of
one Sardar ji.
9. The petitioner has explained that he had moved the application under
Section 311 CrPC on 20.12.2013 for seeking further cross-examination of
PW-7, Sh. Virender Kumar, on these aspects but the Application has been
dismissed by the learned trial Judge, without appreciating the submissions
made by the counsel and also without considering the seriousness and the
gravity of the charges. By way of this present Petition, it is submitted that
only one date is required for further cross-examination of PW-7. Hence, the
present Petition has been filed.
10. Learned counsel for the petitioner has placed reliance on „Ratanlal vs.
Prahlad Jat‟, (2017) 9 SCC 340; 'Vijay Kumar vs. State of U.P.‟, (2011) 8
SCC 136; 'Zahira Habibullah Sheikh vs. State of Gujarat‟, (2006) 3 SCC
374; „Manju Devi vs. State of Rajasthan‟, (2019) 6 SCC 203; „Harendra Rai
vs. State of Bihar‟, 2023 SCC OnLine SC 1023; „Satbir Singh vs. State of
Haryana & Ors.‟ in Criminal Appeal of 2013, arising out of the SLP Crl.No.
1258/2022.
11. Learned APP for the State, has vehemently contested this Application
on the ground that PW-7 had been examined way back in the year 2016
while the present Application has been filed now when some defence
witnesses, has also been examined by the petitioner. It is submitted that
there are no new facts which have emerged from the testimony of the IO and
the Application under Section 311 CrPC, has been rightly rejected by the
learned trial court.
12. Submissions heard.
13. It is settled law that the Court must interfere and exercise its power
under Section 311 CrPC, where the facts make out a case. In „Natasha Singh
Vs. CBI‟, Criminal Appeal No. 709/2013, the Apex Court observed that the
scope and the object of Section 311 Cr.PC, is to enable the Court to
determine the truth and to render a just decision after discovering all
relevant facts and obtaining proper proof of such facts, to arrive at a just
decision of the case. This power must be exercised judiciously and not
capriciously or arbitrarily, as any improper or capricious exercise of such
power may lead to undesirable results. It was further observed that fair trial
is the main object of criminal procedure, and it is the duty of the Court to
ensure that such fairness is not hampered or threatened in any manner. Thus
under no circumstances can the person's right to fair trial be jeopardised.
Essentially, the rules of procedure have been designed to ensure justice and
must be scrupulously followed by the Court, with in full zeal in order to
ensure that there is no breach of the same. Similar observations have been
weighed in the other Judgments relied upon by the petitioner and the law on
Section 311 Cr.PC stands fairly crystalised that the discretion given to the
Courts, must be exercised in order to do complete justice not only from the
point of view of the accused and the prosecution but also from the point of
view of an orderly society. Recall of a witness is not a matter of course and
the discretion must be exercised by the Court judicially to prevent failure of
justice.
14. Stated the contours of exercise of discretion under Section 311 CrPC,
the facts of the present case may be considered. It is a case of 302/34 IPC
registered against the accused in the year 2015. PW-7 Sh. Virender Kumar,
who is the eye witness of the entire incident, was thoroughly cross-examined
on all the possible aspects by the learned counsel for the petitioner, way
back in the year 2016. Thereafter, all other witnesses have been cross-
examined with the last witness being PW-32, IO, whose cross-examination
has been concluded in the year 2023.
15. From the submissions made on behalf of the petitioner, it is evident
that the counsel now representing the petitioner, got engaged in the year
2022. His main grievance seems to be that in his estimation, the entire cross-
examination of PW-7 is not covering the vital aspects of the defence of the
petitioner. According to him, there was one Sardarji, with a video camera
visible in the video clip that has been displayed in the Court and with which,
PW-32, Investigating Officer was confronted. Pertinently, this video form
the part of the Charge-Sheet and a copy of the same was available with the
accused. Moreover, PW-7 had been thoroughly cross-examined on all the
aspects. The presence of Sardarji with the video camera, him being the
owner of a White Maruti Car and his alleged altercation with the deceased,
was never a part of the defence of the petitioner. Though, it has not been
claimed, agitated or suggested to any of the witnesses, but even if the
altercation of the deceased with the Sardarji in the wedding did take place, it
does not in any manner impact the defence taken by the accused.
16. Admittedly, the incident pertains to a Barat and naturally many
people would be present. If the cross-examination of various persons present
in the wedding is started to be taken as a new fact on which further cross-
examination is merited, there would be an endless cross-examination. PW-7
has not only been extensively cross-examined by the earlier counsel but
there is no basis which has now established by the petitioner's counsel of
there being any new fact having emerged in the testimony of PW-32. There
is no explanation whatsoever given by the petitioner for recall of PW-7 to
confront and question him on the aspects as stated in the Application. There
is absolutely no merit in the present Application, which has rightly been
dismissed by the learned trial court in its order dated 20.12.2023.
17. The Writ Petition is hereby dismissed as being without any merit.
(NEENA BANSAL KRISHNA)
JUDGE
JULY 18, 2024/RS
