Delhi District Court
Sh. Chandra Dev Mahto vs Central Bureau Of Investigation on 2 November, 2011
IN THE COURT OF DR. T. R. NAVAL, ADDITIONAL SESSIONS
JUDGE-II, EAST DISTRICT, KARKARDOOMA COURTS, DELHI
Criminal Revision No.123/11
Date of Institution :19.09.2011
Date of Arguments :07.10.2011
Date of Order :02.11.2011
Sh. Chandra Dev Mahto Revisionist
Versus
Central Bureau of Investigation Respondent
ORDER
This order will dispose off a revision petition against the order dated 23.08.2011 passed by Ms. Vrinda Kumari, Ld. A.C.M.M., East District, Karkardooma Courts, Delhi.
2. I have heard arguments of Ld. Counsel for revisionist and Ld. Public Prosecutor for CBI and perused file and Trial Court Record.
3. On perusal of the impugned order I find that Ld. A.C.M.M. dismissed an application u/s 311 Cr.P.C. of the accused. His request to further cross-examination of all the 23 PWs and an opportunity to produce DW Sh. Binda Ram C.R. No.1233/11 Chandra Dev Mehto vs. CBI Page 1 of 9 and Sh. Hira Thakur for their examination was rejected making observations that the plea that previous Counsel of the accused could not cross-examine the witness properly, did not appeal to her conscious. Besides the application did not contain the material facts which could not be put to the 23 prosecution witnesses. Examination of DW Binda Ram was rejected on the ground that many opportunities were granted to the accused but he failed to examine him. Case was at the stage of final arguments. Having aggrieved from that order the revisionist filed present revision.
4. The impugned order has been assailed on the grounds inter-alia that Ld. court did not consider that application u/s 311 Cr.P.C. can be moved at any stage of proceedings; the order of Ld. A.C.M.M resulted in miscarriage of justice as request of the revisionist for recalling the witnesses has been declined; and the impugned order is bad in law as well on the facts.
5. On the other hand it has been argued that impugned order was passed correctly and properly in accordance with law.
6. The facts in brief which are necessary for disposal of the present revision are that accused/revisionist is facing trial in a case for offences punishable u/s C.R. No.1233/11 Chandra Dev Mehto vs. CBI Page 2 of 9 420/471/465 IPC for cheating the Director of Estate for getting employment in his office on the basis of forged Scheduled Tribe caste certificate. The prosecution has examined 23 witnesses. The accused/revisionist has also examined three defence witnesses. The present application was filed when the case was pending at the stage of final arguments.
7. It has been argued on behalf of the Public Prosecutor for CBI that impugned order is an interlocutory order and revision is not maintainable. He relied on a case Sanjay and another Vs State of Haryana and another, 2005 Cri.L.J. 287. It was held by P & H High Court that:
"5. The argument of learned counsel based on a judgment of this Court in Jeo Mirza's case (supra)(1995(3) Rec Cri R
26)(Punj & Har)(supra) cannot be accepted because in that case, no principle of law has been laid down to conclude that an order passed under Section 311 of the Code is not amenable to revisional jurisdiction of this Court. Similar would be position with regard to judgment of Delhi High Court in Ramesh Kumar's case (1990 Cri LJ (NOC) 119) (supra)."
8. In a case Teekam Singh & Ors. vs. IIIrd Addl. Sessions Judge & Anr., 1995(1) Crimes, it was held that:
"5. In the case of Indrapuri Primari Cooperative Housing Society Ltd. and another v. Sri Bhabani Gogoi, 1991 S.C. Cr.R.266, it was held that the order which are interlocutory are not final in the general sense but fall in the middle C.R. No.1233/11 Chandra Dev Mehto vs. CBI Page 3 of 9 course being on intermediate or quasi final order. Matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial and which result in denial of fair trial to the accused, will not be interlocutory orders within the perview of section 397(2), Cr.P.C."
9. Public Prosecutor for CBI that further relied on a case of M/s Bhaskar Industries Ltd. v. M/s. Bhiwani Denim and Apparels Ltd., AIR 2001 SC 3625: (2001 Cri LJ 4250) wherein the Apex Court has observed that:
"The interdict contained in Section 397(2) of the Code of Criminal Procedure (for short 'the Code') is that the powers of revision shall not be exercised in relation to any interlocutory order. Whether an order is interlocutory or not, cannot be decided by merely looking at the order or merely because the order was passed at the interlocutory stage. The safe test laid down by this Court through a series of decisions is this; if the contention of the petitioner who moved the superior Court in revision, as against the order under challenge is upheld, would the criminal proceedings as a whole culminate ? If it would, then the order is not interlocutory in spite of the fact that it was passed during any interlocutory stage.*** The feasible test is whether by upholding the objections raised by a party, it would result in culminating the proceedings, if so any order passed on such objections would not be merely interlocutory in nature as envisaged in Section 397(2) of the Code." [Emphasis supplied]
10. On the other hand Ld. Counsel for the accused C.R. No.1233/11 Chandra Dev Mehto vs. CBI Page 4 of 9 argued that impugned order is not an interlocutory order. He relied on Amar Nath and other Vs. State of Haryana and anohter, 1977 (IV) S.C.C. 137, Madhu Limaye Vs. State of Maharashtra, 1977 (IV) SCC 551, V.C. Shukla Vs. State through CBI, 1980 Supple, SCC 192, K.K. Patel & anr. vs. State of Gujarat & Anr., 2006(VI), SCC 195, Mohanlal Shamji Soni Vs. Union of India and another, 1991 Supp(1) SCC 271 and Shailendra Kumar vs. State of Bihar and others, (2002) 1 SCC 655.
11. On perusal of file and considering the rival contentions of Ld. Counsel for parties and on applying the test as laid down in M/s Bhaskar Industries Ltd. v. M/s. Bhiwani Denim and Apparels Ltd., (supra) I am of the view that the impugned order is not an interlocutory order because the impugned order has effected the material right of the accused and therefore revision against impugned order is maintainable.
12. Ld. Public Prosecutor for CBI further argued that Ld. A.C.M.M. has properly and legally passed the order and she correctly declined the request of the accused for recalling all the 23 witnesses and examination of DW-Binda Ram. He relied on a case Shailender Kumar vs. State of Bihar and others, (Supra) wherein apex court observed C.R. No.1233/11 Chandra Dev Mehto vs. CBI Page 5 of 9 that:
"Section 311 empowers the court to summon material witnesses though not summoned as witnesses and to examine or recall and re-examine if their evidence appears to it to be essential to the just decision of the case. It reads thus:
311. Power to summon material witnesses, or examine person present Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-
examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case."
13. On the other hand Counsel for accused relied on a case Mohanlal Shamji Soni Vs. Union of India and another (Supra) wherein it was held that:
"11. There are various other provisions in the new Code corresponding to the provisions of the old Code empowering the court specified therein to recall any witnes or witnesses already examined or summon any witness, if it is felt necessary in the interest of justice at various stages mentioned in the concerned specific provisions."
14. Counsel for revisionist also relied on a case Shailendra Kumar vs. State of Bihar and others, (Supra) it was observed by apex court that:
"11. Bare reading of the aforesaid section reveals that it is of a very wide amplitude and if there is any negligence, C.R. No.1233/11 Chandra Dev Mehto vs. CBI Page 6 of 9 laches or mistakes by not examining material witnesses, the court's function to render just decision by examining such witnesses at any stage is not, in any way, impaired. This Court in Rajendra Prasad v. Narcotic Cell, (1999)6 SCC 110, observed:(SCC p.113, para 8) "After all, function of the criminal court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better."
15. Public Prosecutor for CBI relied on a case Ravinder Vs. State of Haryana, 2011 Cri.L.J. 1705, wherein P & H High Court observed that:
"6. Present is the case where defence wants to recall PW-6 for further cross-examination on the point of search and site plan stating that earlier counsel could not cross- examine on these points as observed herein before. PW-6 was cross-examined at length by the earlier counsel appearing on behalf of the accused and thereafter statement of the accused was recorded under Section 313 Cr.P.C. and thereafter accused had produced four witnesses in defence and thereafter, after change of the counsel he has moved the present application. Judicial discretion can only be invoked when Court is satisfied that examination- further cross examination is must in the peculiar facts and circumstances or the case. Recalling of the witnesses on the ground that earlier counsel could not cross examine the prosecution witness on certain points, that too after examination of four defence witnesses seems to be afterthought and does not inspire confidence. Order of the trial Court seems to be justified. Dismissed."
16. On perusal of Trial Court Record I find that Ld. Defence Counsel for the accused cross-examined all the C.R. No.1233/11 Chandra Dev Mehto vs. CBI Page 7 of 9 prosecution witnesses except PW-7, PW-19, PW-20 and PW-22, who were not cross-examined by Ld. Counsel for accused despite opportunity accorded to him. Keeping in view the principles of law mentioned in the above referred cases and on considering the arguments I am of the view that order of Ld. A.C.M.M. is liable for modification in the interest of justice. PW-7, PW-19, PW-20 and PW-22 were not practically cross-examined and that may lead to miscarriage of justice, therefore accused is allowed to cross-examine these four witnesses subject to their availability. The accused wanted to examine Sh. Binda Ram and Hira Thakur as DWs. Keeping in view the principles of law laid down in above referred cases, the accused is allowed to lead defence evidence. His request for examination of these witnesses is also allowed. In view of the above reasons and discussions the impugned order is partly stands allowed and partly stands dismissed. Ld. A.C.M.M. is directed to recall the above mentioned four witnesses PW-7, PW-19, PW-20 and PW-22 for the purpose of their cross-examination by the accused. It is made clear that if any or all of these witnesses are not available due to any reason then the accused may not be entitled for having any benefit out of allowing this application for their cross-examination. Ld. A.C.M.M. is also directed to allow C.R. No.1233/11 Chandra Dev Mehto vs. CBI Page 8 of 9 accused to examine witness DW Binda Ram and Hira Thakur.
17. Parties are directed to appear before Ld. A.C.M.M. on 08.11.2011 for further orders.
18. Trial court record be returned with copy of this order.
Revision file be consigned to Record Room.
Announced in the Open Court Dated:02.11.2011 (DR. T.R. NAVAL) Additional Sessions Judge-02, East, Karkardooma Courts, Delhi C.R. No.1233/11 Chandra Dev Mehto vs. CBI Page 9 of 9