Ramesh Sharma & Others vs State Of Himachal Pradesh
2023 Latest Caselaw 12531 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MMO No.78 of 2015

.

Reserved on : 22.06.2023

Decided on : 29.08.2023

Ramesh Sharma & Others ...Petitioners

Versus

State of Himachal Pradesh ...Respondent

Coram The Hon'ble Mr. Justice Virender Singh, Judge.

Whether approved for reporting?1

For the petitioners : Mr. Ravinder Singh Chandel, Advocate.

For the respondent : Mr. H.S. Rawat, Mr. Tejasvi Sharma

& Mr.Mohinder Zharaick, Additional Advocates General.

Virender Singh, Judge.

Petitioners have filed the present petition, under

Section 482 of the Code of Criminal Procedure (hereinafter

referred to as 'CrPC'), against the order dated 19.03.2015,

passed by the Court of learned Additional Chief Judicial

Magistrate, Theog, District Shimla, H.P., (hereinafter

referred to as the 'trial Court'), in Cr.M.A. No.25­4 of 2015,

titled as Ramesh Sharma & Others versus State of H.P.

Whether Reporters of local papers may be allowed to see the judgment? Yes.

2. By way of order dated 19.03.2015, the learned

trial Court has dismissed the application, moved by the

.

petitioners, under Section 311 Cr.PC.

3. As per the factual position, as pleaded in the

petition, the petitioners have been arrayed, as accused, in

the case titled as State of H.P. versus Ramesh Sharma &

Others, before the trial Court.

4. For the sake of convenience, the parties to the

present petition, are hereinafter referred to, in the same

manner, in which, they were referred to, by the learned

trial Court.

5. Brief facts, leading to filing of the present

petition, before this Court, may be summed up, as under:

5.1 Police of Police Station, Theog, District Shimla,

has filed the report under Section 173(2) Cr.PC, against the

accused persons for commission of the offences under

Sections 147, 148, 149, 323, 452 of the Indian Penal Code

(hereinafter referred to as the 'IPC'). The said case has

been registered, at the instance of complainant Sarla Devi.

5.2. Learned trial Court found a prima facie case for

the commission of offences punishable under Sections 143,

452, 323, 149, 147, 148 IPC, against the accused persons

and they have been charge sheeted accordingly, vide order

.

dated 15.3.2012. When, the charges, so framed, were put

to the accused persons, they had not pleaded guilty and

claimed trial. As such, the prosecution has been directed

to adduce evidence.

5.3. Consequently, the prosecution has examined,

as many as, 9 witnesses. However, learned APP has given­

up PW Rajinder Singh and Inspector/SHO Baldev Thakur.

Thereafter, the learned APP has closed the evidence on

behalf of the prosecution on 14.6.2013.

5.4. Thereafter, the matter was adjourned for

recording the statement of the accused persons under

Section 313 Cr.PC.

5.5. On 26.10.2013, the accused persons have

moved an application under Section 311 Cr.PC, with a

prayer to recall PWs Sarla, Mast Ram and Kamlesh @

Babli, for further cross­examination. The application has

been moved on the ground that the statement of the I.O.,

PW­9 was recorded, much after recording the statements of

PW­3, PW­4 and PW­5, whose statements were recorded on

15.10.2012 and 16.10.2012.

.

5.6. It is their further case that in the statement of

the I.O., he has deposed new facts, which are necessary to

be put to the above witnesses. Another reason, for recalling

the witnesses, has also been mentioned that when, the

cross­examination of above three witnesses was conducted,

inadvertently, the questions, qua the place of occurrence

and recovery, could not be put to them. This fact,

according to the accused, is going to prejudice their case

and will affect the final decision of the case.

5.7. In nut shell, the prayer of the accused persons

is based upon the fact that due to subsequent

developments and inadvertent mistake committed by their

counsel, some relevant questions could not be put to the

witnesses aforesaid.

6. On the basis of the above facts, a prayer has

been made to allow the application.

7. This application has been contested by the

State by denying the factual position, as well as, the fact

that the opportunity to cross­examine the witnesses has

been given to the defence by the learned trial Court and the

application has been moved to fill up 'gaps' and to delay

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the proceedings.

8. Learned trial Court, after hearing learned

counsel appearing for the parties, has dismissed the

application on the ground that the application is nothing,

but the futile attempt to reopen the trial, which is at the

fag end. r

9. Another reason has also been mentioned by the

learned trial Court that the application has been moved

with a view to fill the lacuna in their defence.

10. Feeling aggrieved from the said order, the

present petition under Section 482 Cr.P.C., has been

moved. The order has been assailed before this Court,

mainly, on the ground, as taken in the application,

reiterating their stand that a specific prayer has been made

in the application that the counsel for the accused could

not cross­examine the said witnesses with regard to the

place of occurrence and recovery, due to inadvertent

mistake. The order has also been assailed, on the ground

that the application has been moved with a prayer to

recross­examine the witnesses only to the limited point i.e.

'place of occurrence and recovery'.

.

11. On the basis of the above fact, Mr. R.S.

Chandel, learned counsel appearing for the petitioner, has

prayed that the petition may kindly be allowed by setting

aside the order passed by the learned trial Court and the

application, may kindly be allowed.

12. The prayer so made, has been opposed, by Mr.

Tejasvi Sharma, learned Additional Advocate General,

appearing for the respondent­State, on the ground that the

application is nothing, but, an attempt to delay the trial.

13. Perusal of the record shows that by way of the

present application, under Section 311 Cr.PC, a prayer has

been made to recall PW­3 Sarla, PW­4 Mast Ram,

PW­5 Kamlesh @ Babli, for further cross­examination. The

witnesses have been examined on 15.10.2012 and

16.10.2012 and have been cross­examined, at length, by

Mr. R.S. Chandel, Advocate, appearing for the accused.

14. A perusal of the application, under Section 311

Cr.P.C., shows that the application is totally silent about

the 'relevant questions', which the learned counsel for the

accused could not put to the above three witnesses. If the

application, under Section 311 Cr.PC, is allowed on mere

.

asking of the accused persons, then, there will be no end to

the trial.

15. The words 'witnesses could not be cross­

examined as to the spot of occurrence and recovery', are

vague, and the relevancy of those questions, has also not

been explained by the learned counsel for the petitioner.

Even, a futile attempt has been made to get the relief by

putting forward 'inadvertent mistake', on the part of the

counsel.

16. Situation would have been otherwise, had this

application been moved immediately after the statements

of these witnesses or within a short span, whereas, the

application was moved, after a gap of about three years,

that too, when, the evidence of the prosecution was closed.

17. Learned counsel appearing for the accused has

relied upon the decision of Hon'ble Apex Court in Varsha

Garg versus The State of Madhya Pradesh & Others,

2022, LiveLaw (SC) 662. With due respect to the law laid

down by the Hon'ble Apex Court, the same no way helps

the case of the accused, as their application is totally vague.

Interestingly, the present petition has also been filed by the

.

same counsel, who has cross­examined the aforesaid three

witnesses.

18. The application is totally silent as to what are

those material facts, which have been deposed by the I.O.,

in his cross­examination, which are relevant and required

to be put to these witnesses.

19. As stated above, if such type of the plea, is

accepted, then it will become a tool in the hands of the

accused to prolong the trial for indefinite period, as per

their wish.

20. Learned counsel appearing for the accused

could not satisfy the judicial conscience of this Court about

the facts, which have allegedly been deposed by the I.O.

and were not put to the above three witnesses. The vague

term, as used in the application 'place of occurrence and

recovery', is not sufficient to grant the relief to the accused

persons.

21. Considering all these facts, this Court is in full

agreement with the conclusion drawn by the learned trial

Court, but for the reasons, as stated above. The petition is

dismissed accordingly.

.

22. Parties, through their learned counsel, are

directed to appear before the learned trial Court on 18th

September, 2023

23. Record be sent back, immediately.

24. Pending miscellaneous applications, if any,

shall also stand disposed of accordingly.

                                           ( Virender Singh )
    August 29, 2023(ps)                           Judge