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Delhi District Court

Sh. Devender Sharma S/O Sh. Kunj Bihari ... vs The State (Govt. Of Nct Of Delhi) on 15 January, 2011

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     IN THE COURT OF MS. SUNITA GUPTA : DISTRICT JUDGE­VII­CUM­
         ADDITIONAL SESSIONS JUDGE : NORTH­EAST DISTRICT : 
                  KARKARDOOMA COURTS : DELHI :

Cr.(R) No. 32/10
Unique Case ID No. 02402R0182262010

Sh. Devender Sharma S/o Sh. Kunj Bihari Sharma, 
R/o C­1/392, Gali No.27, 
Khajuri Khas Colony, 
Delhi.                                           .............Revisionist. 
        Vs. 
The State (Govt. of NCT of Delhi).               .............Respondent. 

Date of Institution :­ 06.07.2010
Date of reserving the Order :­ 12.01.2011
Date of Pronouncement :­ 15.01.2011.

O R D E R :

­ Feeling aggrieved by the order dated 02.06.2010 whereby non­ bailable warrants were issued against the revisionist and penalty of Rs.900/­ and then Rs.1,000/­ was imposed, present revision petition has been filed under section 397/401 IPC.

2. Briefly stated facts giving rise to filing of present revision­petition are that a complaint under section 323/506/504/406 IPC was filed by Sh. Attar Singh, the revisionist, which was pending on 02.06.2010. The case was fixed for cross­examination of CW2 and payment of diet money. Cr.(R) No. 32/10 Page 1/13

­2­ However, various alls were made and ultimately when counsel for revisionist did not appear, opportunity to cross­examine CW2 was closed and accused was directed to pay the diet money of Rs.900/­ to the witness for his appearance on that day and two earlier dates. Thereafter, it was recorded that revisionist did not appear and the diet money was also not paid, as such non­bailable warrants were issued and cost of Rs.1,000/­ was imposed upon the accused. This order has been assailed by the revisionist by filing the present revision petition.

3. At the outset, it may be mentioned that although complaint case was filed by Attar Singh, however in the revision petition he was not arrayed as party. Rather the revision petition was filed against the State, who was not a party before the ld. Trial Court. As such revision petition was not filed against the proper party. However, complainant himself appeared before this Court, as such Court is not going into this technical defect.

4. I have heard Sh. R.S. Goswami, Advocate, for the revisionist and Sh. Ravinder Singh, Advocate, for the complainant and have perused the record.

5. It was submitted by ld. counsel for the revisionist that on 02.06.2010, when impugned order has been passed he had appeared in the morning before ld. MM for cross­examination of the witness. However, Cr.(R) No. 32/10 Page 2/13 ­3­ at that time LAN of the computer was not working and parties were asked to wait for sometime. He informed the Court that he has to go to Hon'ble High Court, and therefore request was made to keep the case for 2pm. The counsel had gone to Hon'ble High Court and the matter was adjourned after lunch. Therefore, he could not reach the Court at 2pm. But every time his associates kept appearing before the ld. MM and apprised him of the situation. But the Court closed the opportunity to cross­examine the witness and directed to pay diet money to the witness. However, the accused had gone to see the counsel, and therefore did not appear before the Court. Thereupon, the non­bailable warrants were issued. It was submitted that since accused was appearing on every call of the case since morning, there was no occasion for issuance of non­bailable warrants against him or imposition of cost. As such, it was submitted that order of issuance of non­bailable warrants deserves to be recalled.

6. On the other hand, ld. counsel for complainant referred to the conduct of revisionist right from the day, when complaint was filed by him by submitting that after summons were issued, the accused preferred the revision petition, and thereafter same was withdrawn. Then he moved an application for discharge, which was ultimately withdrawn. Thereafter, when notice was served upon him and matter was fixed for evidence, then he took number of opportunities to cross­examine the witness. Same was Cr.(R) No. 32/10 Page 3/13 ­4­ even granted subject to payment of cost. Even on the fateful day, the case was called several times. But the counsel did not appear to cross­examine the witness. Ultimately, the order in question was passed, which does not suffer from infirmity. As such, revision is liable to be dismissed. It was further submitted that although it is alleged that counsel was busy in Hon'ble High court, however no particulars have been furnished for showing as to in which case he was busy in Hon'ble High Court.

7. Thereafter, counsel for the revisionist filed an application stating therein that he had gone to Hon'ble High Court in a bail matter titled State vs. Manish, listed before Hon'ble Justice Sanjeev Khanna.

8. I have given my considerable thoughts to respective submissions of the ld. counsels for the parties and have perused the record.

9. Before considering the rival submissions of ld. counsels for the parties, it will be in fitness of case to reproduce the order passed by ld. MM on 02.06.2010.

02.06.2010 Present : Complainant in person with counsel.

CW2 who was recalled for his cross­examination is present in person.

Accused on bail with proxy counsel Sh. Satender Chaudhary. Today matter is listed for cross­examination of CW2 and payment of diet money however pass over is sought by the proxy counsel for the accused stating Cr.(R) No. 32/10 Page 4/13 ­5­ that main counsel is busy in another Court. On request, be awaited till 12.00 Noon.

                                                                (Shivali Sharma)
                                                                MM/KKD/02.06.2010

              At 12.05

            Pr.       Complainant in person with counsel. 

CW2 who was recalled for his cross­examination is present in person.

Accused on bail with counsel Sh. R.S. Goswami.

LAN of the computer is not working and the parties are asked to wait for 15 minutes. However, counsel for the accused submits that he has to go to High Court and matter may be awaited 2.00PM. On request be awaited till 2.30PM.

(Shivali Sharma) MM/KKD/02.06.2010 At 2.35PM.

Pr. Complainant in person with counsel.

CW2 Who was recalled for his cross­examination is present in person.

Accused on bail with proxy counsel Sh. Satender Chaudhary. It is submitted by the proxy counsel that main counsel is on his way. On his request, be awaited 2.45PM.

(Shivali Sharma) MM/KKD/02.06.2010 At 2.45PM.

Pr. Complainant in person with counsel.

CW2 who was recalled for his cross­examination is present in person.

Accused on bail with proxy counsel Sh. Satender Chaudhary. Cr.(R) No. 32/10 Page 5/13

­6­ Again pass over is sought for 15 minutes. Be awaited for 3.05pm.

(Shivali Sharma) MM/KKD/02.06.2010 At 3.15PM.

Pr. Complainant in person with counsel.

CW2 who was recalled for his cross­examination is present in person.

Accused on bail with proxy counsel Sh. Satender Chaudhary. Again proxy counsel submits that main counsel is not available. It is stated by proxy counsel Satender that he shall file his Vakalatnama and cross­ examine the witness. Not opposed. Permission is granted. At this stage, it is submitted by counsel Sh. Satender that he had sent some one to bring the Vakalatnama and shall cross­examine the witness after the Vakalatnama comes and his filed on record. He is requested to start the cross­examine and the Vakalatnama may be filed as and when it comes. The same is also not opposed by the opposite party. Despite request as well as direction the counsel Sh. Satender Chauhdary is not starting the cross­examination and is simply making excuses on one pretext or the other so that cross­examination of the witness cannot be done. Such conduct is not acceptable at any cost. It appears that accused is simply trying to delay the case. Already sufficient opportunities have been given to the accused to cross­examine the witness. In these circumstances, opportunity to cross­examine CW2 stands closed. CE stands closed vide statement of complainant recorded separately. Put up for S/A on 09.07.2010. The accused is directed to pay the diet money for Rs.900/­ to the Cr.(R) No. 32/10 Page 6/13 ­7­ witness for today's date and two earlier dates as reflected in order dated 15.10.09.

(Shivali Sharma) MM/KKD/02.06.2010 At this stage.

Accused who was directed to pay the diet money to the witness has not appeared and has left without paying the diet money. Even his counsel submits that he is not aware as to where his client has gone and diet money cannot be paid in his absence. In these circumstances, B/B S/B of the accused stands forfeited to State. Issue NBW against the accused and notice to his surety without filing the of PF to be executed through SHO concerned. Complainant is directed to pay the diet money of the witness and cost of Rs.1,000/­ is imposed upon the accused in lieu of the diet money to be paid to the complainant. Put up for the date already fixed i.e. 09.07.2010.

(Shivali Sharma) MM/KKD/02.06.2010

10. A perusal of this order goes to show that three orders were passed by ld. MM.

1. Opportunity to cross­examine CW2 was closed.

2. Diet money of Rs.900/­ was ordered to be paid to the witness and when that was not paid, complainant was directed to pay diet money to the witness and cost of Rs.1,000/­ was imposed upon the accused in lieu of diet money to be paid to complainant.

Cr.(R) No. 32/10 Page 7/13

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3. Non­bailable warrants of accused and notice to surety was issued.

11. A perusal of revision petition goes to show that out of the three orders passed on this date, revisionist is aggrieved by two orders only, inasmuch as, revision petition has been preferred challenging only two orders, which is reflected from the fact that title of the revision petition reads as under :­ Revision petition u/s 397/401 of Cr.P.C. against the impugned order dated 02.06.2010 passed by the Hon'ble Court of Ms. Shivali Sharma, M.M., Karkardooma Courts, Delhi in the matter titled as Attar Singh versus Devender Kumar in which the Hon'ble Court has issued NBW against the revisionist and has imposed the penalty of Rs.900/­ again Rs.1,000/­.

12. The relevant prayer clause of the revision petition is to the following effect :­ "a. To allow the present revision of the revisionist and order dated 02.06.2010 passed by the Court of Ms. Shivali Sharma, M.M., Karkardooma Courts, Delhi may kindly be set­aside and directions be issued to the S.H.O for return of the N.B.W unexecuted, in the interest of Justice".

13. Even the grounds of revision goes to show that basic challenge is to the issuance of non­bailable warrants and imposition of penalty by alleging Cr.(R) No. 32/10 Page 8/13 ­9­ that defence counsel had appeared and requested the matter be taken up after lunch, because his bail application was pending before Hon'ble High Court, and since application was adjourned after lunch, therefore, the counsel could not appear when the case was called. However, every time proxy counsel appeared and informed the Court that defence counsel was likely to reach the Court within short time. Every time proxy counsel assured the Court that examination shall be done as and when main counsel will appear. Accused appeared every time whenever the case was called. Yet without his fault non­bailable warrants were issued, and it is alleged that issuance of non­bailable warrants is liable to be set­aside as the same is based on conjectures and surmises.

14. As regards issuance of non­bailable warrants is concerned, there is force in the submission of ld. counsel for the revisionist that since the accused was appearing since morning, therefore if for the purpose of payment of diet money, he did not appear, for that lapse his non­bailable warrants should not have been issued, inasmuch as, right to cross­ examine CW2 had already been closed and on failure of accused to pay the diet money to the witness, cost of Rs.1,000/­ was imposed. Therefore, this part of the order deserves to be set­aside.

15. As regards the imposition of penalty of Rs.1,000/­ is concerned, this part of the order does not suffer from infirmity, inasmuch as, record Cr.(R) No. 32/10 Page 9/13 ­10­ reveals that on 21.08.09 examination­in­chief of CW2 was completed. His cross­examination was deferred on request of counsel for accused subject to payment of Rs.150/­ as diet money. The matter was adjourned for 15.10.09. On that day, the witness was present, however the accused was absent and an application for his exemption of appearance was moved, which was allowed. Due to absence of accused, the witness could not be cross­examined, as such one last and final opportunity was given and it was made clear that no further opportunity shall be given and matter was adjourned for 30.11.09 for cross­examination of this witness and payment of diet money. On 30.11.09, ld. Presiding Officer was on leave, therefore the matter was adjourned for 28.01.2010. On 28.01.2010, no witness was present, as such the case was adjourned for 02.06.2010. On this date, as is clear from the order sheet, when the matter was called in the morning at that time the main counsel was not available and proxy counsel Sh. Satender Chaudhary had appeared and requested for pass over of the matter on the ground that main counsel is busy in another Court. Therefore, on his request case was taken up at 12.05pm. At that time, LAN of the computer was not working, therefore the parties were asked to wait for 15 minutes. But counsel for the accused stated that he has to go to High Court and therefore case be taken up at 2pm. When the matter was taken up at 2.35pm, accused appeared with Sh. Satender Cr.(R) No. 32/10 Page 10/13 ­11­ Chaudhary, Advocate, who stated that main counsel is on his way. As such on his request, matter was taken up at 2.45pm. Sh. Satender Chaudhary, Advocate, again requested for pass over of the matter for 15 minutes. Therefore, the matter was taken up at 3.15pm. Again Sh. Satender Chaudhary, Advocate, appeared and stated that main counsel is not available. Sh. Satender Chaudhary, Advocate, stated that he will file his vakalatnama and will cross­examine the witness. This request was not opposed by the complainant or his counsel and ld. MM granted permission. At that time, Sh. Satender Chaudhary, Advocate, stated that he will cross­examine the witness after vakalatnama is filed on record. ld. MM requested him to start cross­examination and file vakalatnama as and when it comes. Even the counsel for complainant did not oppose the same. Despite request as well as directions given by the Court, Sh. Satender Chaudhary, Advocate, did not start the cross­examination and kept on making excuses with the result the cross­examination of witness could not be done. This conduct was wholly undesirable and it was observed by ld. MM that accused is simply trying to delay the case. Sufficient number of opportunities had already been given to the accused to cross­examine the witness. Under these circumstances, opportunity to cross­examine CW2 was closed and the complainant closed his evidence. Accused was directed to pay diet money of Rs.900/­ to the witness for that Cr.(R) No. 32/10 Page 11/13 ­12­ day and two earlier dates. At that juncture, accused did not appear and left without paying the diet money. His counsel submitted that he is not aware as to where accused has gone and in his absence diet money could not be paid. Thereupon the Court directed complainant to pay diet money to the witness and imposed cost of Rs.1,000/­. This part of the order does not suffer from any infirmity, which calls for interference.

16. There is force in the submission of ld. counsel for complainant that entire endeavour of the revisionist is to delay the matter, which is reflected from the fact that record reveals that complaint under section 323/506/504/406 IPC was filed by complainant Attar Singh against accused Devender Kumar on 05.11.2001. Vide order dated 15.07.03, ld. MM passed order for summoning the accused. On 19.09.03, counsel for accused appeared and stated that order of summoning has been stayed by the Court of ld. ASJ, as such the matter was kept adjourned. Ultimately, on 05.04.04, accused appeared with his counsel and submitted that he has withdrawn the revision petition. Thereafter, he moved an application under section 245 Cr.P.C and for various dates this application was being adjourned for arguments. Ultimately, on 04.04.06, counsel for accused stated that he withdrew this application for discharge. As such application was dismissed as withdrawn. Thereafter, on 17.10.07, notice for offence under sections 323/506 IPC was served upon the accused, to which he Cr.(R) No. 32/10 Page 12/13 ­13­ pleaded not guilty and claimed trial. Case was adjourned for complainant evidence. As stated above the witness had to be called a number of times, but his cross­examination was not done and ultimately the impugned order was passed, which, under these circumstances narrated above does not suffer from any infirmity. As such this part of the order does not call for any interference.

17. As regards closure of right to cross­examine CW2 is concerned, as stated above, this part of the order has not been challenged in the revision petition, therefore, there is no reason to interfere with this part of the order.

18. Result of the aforesaid discussion is that revision petition is partly allowed. Order dated 02.06.2010 regarding issuance of non­bailable warrants against the accused with notice to surety is set­aside. Remaining part of the order is upheld.

19. Parties are directed to appear before the Court concerned on 18.01.2011., on which date revisionist is directed to pay cost of Rs.1,000/­ to the complainant. A copy of the order along with Trial Court record be sent back. Revision file be consigned to Record Room.

Announced in the Open Court (Sunita Gupta) On this 15th day of January, 2011. District Judge­VII/NE­cum­ASJ, Karkardooma Courts, Delhi.

Cr.(R) No. 32/10 Page 13/13