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Delhi High Court

Rati Pal Saroj vs Cbi on 20 April, 2012

Author: Mukta Gupta

Bench: Mukta Gupta

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


+      CRL.M.C. 1337/2012

%                                             Decided on: 20th April, 2012

       RATI PAL SAROJ                                     ..... Petitioner
                     Through:            Mr. K.B. Andley, Sr. Adv. with Mr.
                                         M.L. Yadav, Mr. Prayank Sharma,
                                         Advs.
                     versus

       CBI                                                   ..... Respondent
                              Through: Ms. Sonia Mathur, SC for CBI with
                              Mr. Raja Chatterjee, Inspector

Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA
MUKTA GUPTA, J (ORAL)

Exemption allowed subject to just exceptions.

1. By this petition the Petitioner seeks setting aside of the orders dated 3rd November, 2011 and 2nd February, 2012 dismissing the prayer of the Petitioner to recall PW-29 and consequential relief of recalling PW-29 Shri S.L. Mukhi, the handwriting expert for further cross-examination on behalf of the Petitioner.

2. Briefly the facts giving rise to the filing of the present petition are that the Petitioner is facing trial in RC No. 4/86 ACU-II for offences under Crl.M.C. 1337/2012 Page 1 of 3 Section 120B/420/468/471 IPC and Section 5(2) read with Section 5(1)(C)(D) of the Prevention of Corruption Act, 1947. During the trial PW- 29 S.L. Mukhi was examined as the hand-writing expert. Examination-in- chief of Shri S.L. Mukhi was concluded on 7th February, 2011 and on the said date on the request of the defence counsel the matter was deferred for cross-examination of this witness for 8th March, 2011. On 8th March this witness was cross-examined by the learned counsel for the Petitioner, however the further cross-examination was deferred as the counsel had to go to another Court after lunch. On 20th May, 2011 the counsel for the Petitioner was not well and thus the matter was deferred to 4 th July, 2011. Again on 4th July, 2011 after half page cross-examination was conducted by the defence counsel the matter was adjourned to 19 th August, 2011 when again part cross-examination was conducted and deferred to 19th August, 2011 and 30th August, 2011 when this witness was subjected to lengthy cross-examinations. The next date was fixed for 19th September, 2011 when the witness was present but had to be discharged as the counsel for the Petitioner was not present. On 20th September, 2011 again the witness was present but the defence counsel was not present and an application was filed that the defence counsel is unwell. On 3rd November, 2011 again the witness was present, however the defence counsel was not present as he was again unwell and thus the learned Special Judge passed the order that the cross- examination of witness qua the Petitioner was considered to be complete.

3. The Petitioner thereafter filed an application under Section 311 Cr.P.C. seeking recall of PW-29, however the said application was dismissed by the learned Special Judge vide order dated 20th February, 2012. The Crl.M.C. 1337/2012 Page 2 of 3 contention of the learned counsel for the Petitioner in the present case is that the counsel for the Petitioner was suffering from blood cancer, could not even speak properly and thus due to his counsel being unwell the matter had to be adjourned on number of occasions. Now the Petitioner has changed the counsel and one opportunity be granted to complete cross-examination of PW-29.

4. The ailment of the learned counsel for the Petitioner is not being disputed. The matter had to be adjourned on a number of occasions though the witness was present, since the learned counsel for the Petitioner was unwell. However, keeping in view the fact that the Petitioner should not be prejudiced on account of the ailment of the counsel, I deem it fit to set aside the impugned order dated 3rd November, 2011 to the extent it directs that the evidence of PW-29 is taken as closed and the order dated 2nd February, 2012 dismissing the application under Section 311 Cr.P.C. Consequently, the Learned Additional Sessions Judge is directed to recall PW-29 Shri S.L. Mukhi for one date. The Petitioner will conclude the remaining cross- examination of PW-29 on one date when PW-29 will appear & no adjournment would be granted on the said date.

5. With these directions petition is disposed of.

(MUKTA GUPTA) JUDGE APRIL 20, 2012/'ga' Crl.M.C. 1337/2012 Page 3 of 3