In The Matter Of: Shyam Sunder vs State Nct Of Delhi on 5 November, 2020

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Delhi High Court - Orders

In The Matter Of: Shyam Sunder vs State Nct Of Delhi on 5 November, 2020

Bench: Manoj Kumar Ohri

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*IN THE HIGH COURT OF DELHI AT NEW DELHI
                                         Date of Decision: 05.11.2020
+      CRL. M.C. 2128/2020
IN THE MATTER OF:

       SHYAM SUNDER                                      ..... Petitioner
                   Through:              Mr.Ajay Paul Marken, Advocate.

                          versus

       STATE NCT OF DELHI                            ..... Respondent
                     Through:            Mr.Mukesh Kumar, APP for State.

       CORAM:
       HON'BLE MR. JUSTICE MANOJ KUMAR OHRI

       (VIA VIDEO CONFERENCING)

MANOJ KUMAR OHRI, J (ORAL)

CRL. M.A. 15184/2020 (Exemption)

1. Allowed, subject to all just exceptions.

2. Application stands disposed of.

CRL. M.C. 2128/2020 & CRL. M.A 15183/2020 (stay)

1. The present petition has been filed under Section 482 Cr.P.C. on behalf of the petitioner impugning the order dated 04.08.2020 passed by the learned Metropolitan Magistrate in petitioner's application filed under Section 311 Cr.P.C. seeking recall of PW-1 Kulchander Kumar and PW-9 HC Shailesh Kumar.

Crl.M.C. 2128/2020 Page 1 of 8

2. The aforesaid order passed by the learned Metropolitan Magistrate was challenged by the petitioner by way of a revision petition before the Sessions Court which came to be dismissed vide order dated 17.10.2020.

3. Learned counsel for the petitioner submits that on an earlier occasion, a different counsel had appeared before the Trial Court, who could not properly cross-examine PW-1. He further submits that he is the new counsel engaged by the petitioner to represent him in the present case and in view of the later developments, has sought an opportunity to recall PW-1, who happens to be the husband of the deceased.

4. It is also submitted on behalf of the petitioner that HC Shailesh (PW-

9), who had accompanied the IO to the spot on the date of the incident, was examined on 13.03.2019, but could not be cross-examined as the counsel was out of station. He has also annexed air travel tickets of the aforesaid date. It is further informed that the prosecution evidence has been closed and the matter is now listed on 01.12.2020 for recording the statement of the accused.

5. Mr. Mukesh Kumar, learned APP for the State, on the other hand, has opposed the present petition. He submits that the present petition is nothing but an attempt to delay the trial.

6. I have heard the learned counsels for the parties.

7. This Court, vide order dated 11.02.2020 in Crl. Rev. P. 812/2018 titled Sunita Verma & Ors. v. Permanand Verma, held as follows:

"6. A fair trial is the hallmark of criminal procedure. It entails not only the rights of the victim but also the interest of the accused and the society. It is the duty of the criminal court to ensure that fair and proper opportunity is granted to the accused for the just decision of Crl.M.C. 2128/2020 Page 2 of 8 the case. Adducing evidence by the accused in support of his defence is a valuable right.

7. In Natasha Singh v. CBI reported as (2013) 5 SCC 741, while referring to its earlier decisions in Mir Mohd. Omar v. State of W.B. reported as (1989) 4 SCC 436, Mohanlal Shamji Soni v. Union of India reported as AIR 1991 SC 1346, Rajeswar Prasad Misra v. State of W.B. reported as AIR 1965 SC 1887, Rajendra Prasad v. Narcotic Cell reported as (1999) 6 SCC 110, P. Sanjeeva Rao v. State of Andhra Pradesh reported as (2012) 7 SCC 56, T. Nagappa v. Y.R. Muralidhar reported as (2008) 5 SCC 633, the Supreme Court held as under:-

"8. Section 311 CrPC empowers the court to summon a material witness, or to examine a person present at "any stage" of "any enquiry", or "trial", or "any other proceedings" under CrPC, or to summon any person as a witness, or to recall and re- examine any person who has already been examined if his evidence appears to it, to be essential to the arrival of a just decision of the case. Undoubtedly, CrPC has conferred a very wide discretionary power upon the court in this respect, but such a discretion is to be exercised judiciously and not arbitrarily. The power of the court in this context is very wide, and in exercise of the same, it may summon any person as a witness at any stage of the trial, or other proceedings. The court is competent to exercise such power even suo motu if no such application has been filed by either of the parties. However, the court must satisfy itself, that it was in fact essential to examine such a witness, or to recall him for further examination in order to arrive at a just decision of the case.

xxx

15. The scope and object of the provision 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. Power must be exercised judiciously and not capriciously or arbitrarily, as any improper or capricious exercise of such power may lead to Crl.M.C. 2128/2020 Page 3 of 8 undesirable results. An application under Section 311 CrPC must not be allowed only to fill up a lacuna in the case of the prosecution, or of the defence, or to the disadvantage of the accused, or to cause serious prejudice to the defence of the accused, or to give an unfair advantage to the opposite party. Further, the additional evidence must not be received as a disguise for retrial, or to change the nature of the case against either of the parties. Such a power must be exercised, provided that the evidence that is likely to be tendered by a witness, is germane to the issue involved. An opportunity of rebuttal however, must be given to the other party. The power conferred under Section 311 CrPC must therefore, be invoked by the court only in order to meet the ends of justice, for strong and valid reasons, and the same must be exercised with great caution and circumspection. The very use of words such as "any court", "at any stage", or "or any enquiry, trial or other proceedings", "any person" and "any such person" clearly spells out that the provisions of this section have been expressed in the widest possible terms, and do not limit the discretion of the court in any way. There is thus no escape if the fresh evidence to be obtained is essential to the just decision of the case. The determinative factor should therefore be, whether the summoning/recalling of the said witness is in fact, essential to the just decision of the case.

16. 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. Fair trial entails the interests of the accused, the victim and of the society, and therefore, fair trial includes the grant of fair and proper opportunities to the person concerned, and the same must be ensured as this is a constitutional, as well as a human right. Thus, under no circumstances can a person's right to fair trial be jeopardised. Adducing evidence in support of the defence is a valuable right. Denial of such right would amount to the denial of a fair trial. Thus, it is essential that the rules of procedure that have been designed to ensure justice are scrupulously followed, and the court must be zealous in ensuring that there is no breach of the same."

Crl.M.C. 2128/2020 Page 4 of 8

8. Again, this Court in Central Bureau of Investigation v. Sanjeev Kumar & Anr. reported as 2019 (4) JCC 3635 discussed the scope of Section 311 Cr.P.C. and held as under:

"8. In so far as scope of Section 311 Cr.P.C. is concerned, it is no longer res integra that the court has ample powers of summoning or recalling and re-examining any witness and the only condition prescribed is that the evidence sought to be obtained must be essential to the just decision of the case. In Mohan Lal Shamji Soni v. Union of India and Anr. reported as 1991 Supp (1) SCC 271, the Supreme Court considered the scope of Section 540 of the old Code (corresponding to Section 311 of the new Code). It was observed that the Section is manifestly in two parts. The first part which uses the word 'may' enables the Court to act in one of the following three ways:

"7. Section 540 was found in Chapter XLVI of the old Code of 1898 under the heading 'Miscellaneous'. But the present corresponding Section 311 of the new Code is found among other sections in Chapter XXIV under the heading 'General Provisions as to Enquiries and Trials'. Section 311 is an almost verbatim reproduction of Section 540 of the old Code except for the insertion of the words 'to be' before the word 'essential' occurring in the old Section. This section is manifestly in two parts. Whereas the word used in the first part is 'may' the word used in the second part is 'shall'. In consequence, the first part which is permissive gives purely discretionary authority to the Criminal Code and enables it 'at any stage of enquiry, trial or other proceedings' under the Code to act in one of the three ways, namely, (1) to summon any person as a witness, or (2) to examine any person in attendance, though not summoned as a witness, or Crl.M.C. 2128/2020 Page 5 of 8 (3) to recall and re-examine any person already examined.

10. It is a cardinal rule in the law of evidence that the best available evidence should be brought before the Court to prove a fact or the points in issue. But it is left either for the prosecution or for the defence to establish its respective case by adducing the best available evidence and the court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their sides. Nonetheless if either of the parties withholds any evidence which could be produced and which, if produced, be unfavorable to the party withholding such evidence, the court can draw a presumption under illustration (g) to Section 114 of the Evidence Act. In such a situation a question that arises for consideration is whether the presiding officer of a court should simply sit as a mere umpire at a contest between two parties and declare at the end of combat who has won and who has lost or is there not any legal duty of his own, independent of the parties, to take an active role in the proceedings in finding the truth and administering justice? It is a well accepted and settled principle that a court must discharge its statutory functions-whether discretionary or obligatory-according to law in dispensing justice because it is the duty of a court not only to do justice but also to ensure that justice is being done. In order to enable the court to find out the truth and render a just decision, the salutary provisions of Section 540 of the Code (Section 311 of the New Code) are enacted where under any court by exercising its discretionary authority at any stage of enquiry, trial or other proceeding can summon any person as a witness or examine any person in attendance though not summoned as a witness or recall or re-examine any person in attendance though not summoned as a witness or recall and reexamine any person already examined who are expected to be able to throw light upon the matter in dispute; because if judgments happen to be rendered on inchoate, inconclusive and speculative presentation of facts, the ends of justice would be defeated.

xxx Crl.M.C. 2128/2020 Page 6 of 8

16. The second part of Section 540 as pointed out albeit imposes upon the court an obligation of summoning or recalling and reexamining any witness and the only condition prescribed is that the evidence sought to be obtained must be essential to the just decision of the case. When any party to the proceedings points out the desirability some evidence being taken, then the court has to exercise its power under this provision-either discretionary or mandatory-depending on the facts and circumstances of each case, having in view that the most paramount principle underlying this provision is to discover or to obtain proper proof of relevant facts in order to meet the requirements of justice. In this connection we would like to quote with approval the following views of Lumpkin, J. in Epps v. S., which reads thus:

"........it is not only the right but the duty of the presiding judge to call the attention of the witness to it, whether it makes for or against the prosecution; his aim being neither to punish the innocent nor screen the guilty, but to administer the law correctly. Counsel seek only for their client's success; but the judge must watch that justice triumphs."

xxx

21. At the risk of repetition it may be said that Section 540 allows the court to invoke its inherent power at any stage, as long as the court retains seisin of the criminal proceeding, without qualifying any limitation or prohibition. Needless to say that an enquiry or trial in a criminal proceeding comes to an end or reaches its finality when the order or judgment is pronounced and until then the court has power to use this section......."

9. The present case relates to an FIR pertaining to the year 2011. The prosecution has cited 11 witnesses. Kulchander Kumar (PW-1) was initially examined and cross-examined on 01.05.2013. The only ground to recall the aforesaid witness is that the said witness could not be cross-examined on certain material aspects by the previous counsel.

Crl.M.C. 2128/2020 Page 7 of 8

10. In State (NCT of Delhi) v. Shiv Kumar Yadav & Anr. reported as (2016) 2 SCC 402, the Supreme Court has observed that mere change of counsel cannot be a ground to recall a witness.

11. Accordingly, the request to recall Kulchander Kumar after a lapse of 7 years is rejected.

12. So far as recall of HC Shailesh Kumar (PW-9) is concerned, it has been stated that the counsel for the petitioner was out of station on said the date. The matter is stated to be pending in the Trial Court at the stage of recording the statement of the accused. The witness had gone to the spot alongwith the I.O. In the interest of justice, I deem it fit to grant one opportunity to the petitioner to cross-examine HC Shailesh Kumar on one date only. The Trial Court shall fix one date for the said purpose. It is made clear that on the date so fixed by the Trial Court, the cross-examination of HC Shailesh Kumar shall be conducted and completed by the petitioner's counsel and no further opportunity for this purpose shall be granted to the petitioner for the said purpose.

13. The petition is allowed and disposed of in the above terms.

14. A copy of this order be communicated to the concerned Trial Court.

MANOJ KUMAR OHRI (JUDGE) NOVEMBER 05, 2020 'dc' Crl.M.C. 2128/2020 Page 8 of 8

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Delhi High Court - Orders