Delhi District Court
Dr. V.K. Sehdev vs State (Nct Of Delhi) on 21 October, 2016
Case No. 58501/2016
IN THE COURT OF SPECIAL JUDGE, CBI (PC ACT)-06, CENTRAL DISTRICT, TIS
HAZARI COURTS, DELHI
I. CR No. 58501/2016
&
II. CR No. 58502/2016
Dr. V.K. Sehdev
s/o Late Sh. R.K. Sehdev
C/o Sant Hospital
Main Burari Road,
Sant Nagar, Delhi-110084 .....Petitioner
Versus
1. State (NCT of Delhi)
Through: The Public Prosecutor
At This Hazari Court, Central, Delhi.
2. Appropriate Authority/Chief District Medical Officer.
North Delhi, Delhi Govt. Dispensary Building,
Gulabi Bagh, Delhi-11007. .....Respondent
Instituted on : 18.10.2016
Arguments on : 19.10.2016
Decided on : 21.10.2016
JUDGMENT
1. This common order shall dispose of two revision petitions U/S 397 r/w section 401 of the Code of Criminal Procedure preferred by accused Dr. V.K.Sehdev (petitioner herein). First petition (CR No. 58501/2016) is against portion of evidence recorded on 12.08.2016 and second revision petition (CR No. 58502/2016) is preferred against order dated 21.09.2016 passed by the court of Sh. Pawan Kumar, Ld. Metropolitan Magistrate (Central-02) Delhi in Criminal complaint case (CC no. 235/G) titled as "Dr. Aruna Jain v. Dr. V.K. Sehdev and Ors".
Dr. V.K. Sehdev v. State and Anr. Page No. 1 out of 9 Pages Case No. 58501/2016
2. Briefly stated, relevant facts leading to the filing of this revision petition are as under:-
On 06.08.2006, complaint case u/s 28(1) (a), 29 and Rules 9 and 13 of the Pre Conception & Prenatal Diagnostic Technique (PC & PNDT) (Regulation and Prevention of Misuse) Act, 1994 and Section 200 of Termination of Pregnancy Act (MTP Act.), 1971, was filed by Dr. Aruna Jain, Chief Medical Officer Appropriate Authority North District Office of Chief District Medical Officer, against Dr. V.K. Sehdev, Medical Director Sant Hospital, Main Burari Road, Sant Nagar, Delhi-84. Vide order dated 28.10.2006, Ld. Trial Court summoned petitioner Dr. V.K. Sehdev as well as co-accused Dr. Anil Grover and Manish Gupta. After appearance of the accused persons, pre-charge evidence of the complainant was recorded. During Pre Charge evidence, CW1 Dr. Aruna Jain, Chief District Medical Officer, CW-2 Dr.Shalley Kamra, State Program Officer for PNDT and CW3 Dr.Vineet Swaroop, CMO, (R & H) CGHS, North Zone, Delhi were examined and on 1 st June 2015, Ld. Trial Court framed charges against petitioner Dr. V.K. Sehdev for offence u/s 23 of PC & PNDT Act, 1994 and against co-accused namely Dr Anil Grover and Manish Gupta u/s 23 of PC & PNDT Act, 1994.
3. Petitioner preferred a revision petition against the order on charge, which was dismissed by the Session Court vide order dated 15.10.2015. Thereafter, Dr. V.K. Sehdev (petitioner herein) filed an application seeking his acquittal u/s 248 Cr.P.C., which was dismissed by Ld. MM on 07.12.2015 and revision petition preferred against the said order was also dismissed by the Ld. Special Judge, vide order dated 16.12.2015. Dr. V.K. Sehdev filed another revision petition seeking his discharge on 07.09.2015 which was withdrawn by him on 01.12.2015.
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4. Sh. S.R. Mehta, Ld counsel appearing for the petitioner argued that a witness can not be permitted to resile from her previous statement and as per section 278 Cr.P.C, witness cannot correct her statement after it is read over to her and has been signed by her. Ld counsel submitted that whatever submission was to be made by the witness, had to come on record in the form of an application by the witness and the court was required to make memorandum separately as mentioned in 278 Cr.P.C. and it ought not to have recorded during or in the testimony of the witness and therefore, the observation recorded by the Ld trial court be expunged from the record.
5. Sh.Himanshu Garg, Ld. Prosecutor submits that there is no illegality in the order and the petitioner was given ample opportunity to cross-examine the witness.
6. While recording statement of CW-2 on 12 th August 2016, Ld court recorded observations to the effect that witness submits that she found some typographical mistake in the cross-examination on page no. 1 in the 5 th line the word "during" instead of "before". Thereafter, cross-examination of the witness resumed. Ld Trial Court recorded submission of the witness without any objection by defence counsel and without any observation and/or comments and petitioner has challenged the impugned order dated 21.09.2016 as well as submission of witness (CW2 Dr. Shalley Kamra) recorded by Ld. Trial Court.
7. Perusal of record shows that in the present case, Dr. Shalley Kamra (CW-
2) was partly cross-examined by Ld. Counsel for petitioner during pre-lunch session and cross-examined was deferred due to lunch time which resumed after lunch time at 2:20 p.m. on the same day i.e. 12.08.2016. Cross-examination of CW-2 had not been concluded in the pre-lunch session and in the post lunch session, before she could be cross-examined further by Ld. Defence counsel, at Dr. V.K. Sehdev v. State and Anr. Page No. 3 out of 9 Pages Case No. 58501/2016 the outset, witness pointed out that she had found some typographical mistake in the cross-examination at page no. 1 5 th line wherein the word "during" instead of word "before" had come. Ld. Trial court merely recorded the submission of the witness and indisputably, had not passed any order permitting or disallowing the correction. Thereafter, Ld. Defence counsel further cross-examined the witness at length (i.e. 4 ½ pages) including as regard seizure cum inspection memo stated to have been signed by her. As per Section 278 Cr.P.C, if the witness denies the correctness of any part of the evidence when the same is read over to him, the Magistrate or Presiding Judge may, instead of correcting the evidence, make a memorandum thereon of the objection made to it by the witness and shall add such remarks as he thinks necessary.
8. Ld. trial court merely recorded submission of CW-2 and neither passed any order nor gave any finding in that regard. The probative value of the statement CW-2 or the portion of statement of witness or the fact as to which statement of the witness was correct or incorrect or whether witness had made any improvement in the post lunch sessions or not or whether veracity of the witness had been impeached or not are the question to be considered by the Trial Court at the time of appreciating the evidence of this witness as well as other witnesses as a whole later on. In these circumstances, submission of witness recorded by Ld MM was neither revisable nor had any illegality and no error can be found in recording of the submission of the witness by the Ld. Trial Court and there is no question of resulting any loss of injury or injustice to the petitioner.
9. This court finds no merit in the contention of Ld counsel for applicant that an application in writing was required to be filed by the witness or that his submission for correction could not be recorded by trial court on her oral submission or that trial court was obliged to invite objection of the Ld defence Dr. V.K. Sehdev v. State and Anr. Page No. 4 out of 9 Pages Case No. 58501/2016 counsel as regard the submission of the witness under cross-examination. Defence counsel was at liberty to make any objection and as per record, no objection had been made by him. There is no prescribed form, in which memorandum is to be recorded by the Ld. Magistrate. It cannot be observed that Ld. Trial Court violated sanctity of any statutory norms u/s 278 Cr.P.C as argued. Whether correction was a 'typographical error' as per definition of typographical error or not as submitted will be considered by the trial court at the time of appreciation of evidence and final hearing. This court finds no merit in the revision petition seeking expunging of the submission made by the witness regarding typographical mistake as prayed.
10. Now this court shall advert to impugned order dated 21.09.2016, whereby Ld. Trial Court dismissed application u/s 311 Cr.P.C. moved on behalf of petitioner with cost of Rs. 25,000/- to be deposited with Delhi Legal Services Authority.
11. The ground raised by Ld counsel for petitioner while challenging order of dismissal of application u/s 311 Cr.P.C are that Ms. Shelly Kamra made defence counsel as accused of physical assault in the open full court room and accused him of attempt to touch her which was a bald and false accusation; that Ld MM failed to note down the demeanour of the witness as postulated u/s 280 Cr.P.C; that accusations were sudden, unexpected and motivated and counsel was surprised and shocked owing to such bald, false and frivolous accusations in the court; that complainant witness knew that she had made false accusation against the defence counsel and expected to have a backlash from the defence counsel, kept on making the request for providing her security and in this process, defence counsel could not concentrate on cross examination; that trial court did not consider her frivolous plea and did not provide her any security and all Dr. V.K. Sehdev v. State and Anr. Page No. 5 out of 9 Pages Case No. 58501/2016 accusations were deliberately made to stump out the defence counsel and melafidely by her action interfered in the judicial process; that defence counsel tried his best and maintained the decorum of the court but lost his mental tranquility and thus could not encash the opportunity of rebuttal and that no case property had been put by the complainant witness and opportunity of rebuttal was denied to the accused since no case property had been put forth and that it is essential to recall the complainant witness Ms.Shalley Kamara for just decision of the case and that no prejudice will be caused to any of the party since the post charge evidence is being conducted and yet to be completed.
12. Lastly, Sh. Mehta Ld. Counsel submits that Ld. Metropolitan Magistrate was not permitted to impose cost as in Code of Criminal Procedure nowhere provides regarding imposition of cost except u/s 143 (3), 342, and 359 Cr.P.C. and u/s 482 Cr.P.C only Hon'ble High Court has power. It is submitted that Trial Court has no inherent power u/s 482 Cr.P.C to impose cost. Ld. counsel referred to judgments passed by Delhi High Court in M/s. Nova Vision Electronics v. State and Anr.1 and Mary Angel and Ors. vs. State of Tamil Nadu 2. Ld. counsel relied upon aforesaid judgments to conclude that no order of cost could have been passed by the ld. MM, hence, the order is liable to be set aside. It is submitted that Ld. Trial Court should have adopted liberal approach in allowing the application u/s 311 Cr.P.C. and that due to any reason if a party could not completely cross-examined, the witness should have been allowed to recall.
13. Sh. Himanshu Garg, Addl. PP for State submitted that CW-2 had been cross examined at length by the Ld counsel for petitioner and no such alleged incident regarding any accusations leveled by the witness against the defence counsel as narrated by Ld defence counsel took place and no such incident had 1 III (2009) DLT (Crl.) 1000 2 (1999) 5 Supreme Court Cases 209 Dr. V.K. Sehdev v. State and Anr. Page No. 6 out of 9 Pages Case No. 58501/2016 been recorded in the order sheet in the record of the trial court and no such application had been filed by defence counsel. It is submitted that if the alleged incident had occurred, defence counsel would not have cross examined the witness at length. It is submitted that a false story has been concocted to harass the witness and to delay the trial and thus no ground for recalling of CW-2 is made out.
14. Legal position is well settled that the exercise of power under Section 311 Cr.P.C. for calling a witness or re-examining a witness already examined can be resorted to only with the object of finding out the truth or obtaining proper proof of such facts which lead to a just and correct decision of the case, concerned court has discretion to summon any person as a witness or recall or re-examine any such person already examined at any stage of the trial proceedings, as long as such a witness is considered essential for the purpose of conducting proper and fair trial.
15. It may be noted that while dismissing the application, Ld. Trial Court observed that CW2 had been examined in the trial number of times and cross- examined at length and issue raised in the application was not sustainable. At this stage, brief track record of the manner in which witnesses are examined in this case may be noted. CW2 Dr. Shalley Kamra was examined on 07.08.2012. She was cross-examined on 20.09.2013, 07.10.2013, 24.10.2013. She as well as CW-3 Dr. Vineet Swaroop were further examined on 05.06.2015. During post charge evidence, CW2 Dr. Shalley Kamra was recalled for cross-examination on 15.12.2015, but was not cross-examined by any of the counsel including Mr. S.R. Mehta, counsel for petitioner on the ground amongst other that he was not prepared to cross-examine the witness. CW1. Dr. Aruna Jain was partly cross- examined on behalf of co-accused on 13.01.2016 as well as on 21.01.2016 and Dr. V.K. Sehdev v. State and Anr. Page No. 7 out of 9 Pages Case No. 58501/2016 cross-examination of CW1 Dr. Aruna Jain was deferred on behalf of petitioner on the ground that his counsel was not available on that day. On 12.07.2016, CW2 Dr. Shalley Kamra was cross-examined on behalf of petitioner by counsels for the petitioner and again on 12.08.2016, by counsel of petitioner Sh.Mehta as well as other counsel, Sh. Tarun Walia and Sh. Amardeep Singh and was discharged. On 23.08.2015, application u/s 311 Cr.P.C. was filed on behalf of petitioner for recalling of Dr. Shalley Kamra (CW-2).
16. There is no doubt that application u/s 311 Cr.P.C can be filed and allowed at any stage, provided it is essential in the interest of justice to examine or recall any witness, but in the present case, this court finds that no satisfactory ground has been shown by the petitioner for recalling CW-2. Perusal of the record shows that Ld counsel for petitioner cross examined CW-2 at length on 12 th July 2016 and then again on 12th August 2016 (in pre-lunch as well as post lunch session) and sufficient opportunity had been granted to the petitioner. There is nothing on record to show that any accusation had been made by the witness against the defence counsel. The contention raised by Ld counsel for the accused (petitioner herein) that he could not concentrate on cross-examination or lost his mental tranquility and could not encash the opportunity of rebuttal is devoid of any merit and is therefore, rejected.
17. To conclude, this court finds no illegality, procedural irregularity or impropriety in the impugned order passed by Learned Trial Court as regards the recording of submission of the witness i.e. Dr. Shally Kamra CW-2 on 12.08.2016, therefore, revision Petition CR No. 58501/2016 is dismissed.
18. Furthermore, this court finds no illegality, impropriety or procedural infirmity in the impugned order dated 21.09.2016 passed by Learned Trial Court as regards dismissal of the application u/s 311 Cr.PC, but in so far as order of Dr. V.K. Sehdev v. State and Anr. Page No. 8 out of 9 Pages Case No. 58501/2016 imposition of cost of Rs.25,000/- is concerned, this court finds that the said portion of the order is illegal and improper. Therefore, portion of the impugned order whereby cost of Rs.25,000/- is imposed deserves to be set aside and recalled. Order accordingly. Petition CR No. 58502/2016 stands partly allowed.
19. This common order be placed in CR No.58501/2016 and copy thereof be placed in other revision petition CR No. 58502/2016 under the signature of the reader. TCR be sent back along with a copy of this order. Revision file be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT VINAY KUMAR KHANNA
on 21st October 2016 Special Judge-CBI (PC Act)-06
THC/Delhi/21.10.2016
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