Delhi High Court - Orders
Vijendra Singh Jafa vs Central Bureau Of Investigation on 27 September, 2019
Author: Anu Malhotra
Bench: Anu Malhotra
$~6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C. 1477/2019
VIJENDRA SINGH JAFA ..... Petitioner
Through: Mr. KTS Tulsi, Sr. Adv. with Ms.
Pallavi Malhotra, Adv.
versus
CENTRAL BUREAU OF INVESTIGATION ..... Respondent
Through: Mr. Anil Grover, SPP for CBI with
Mr. Mishal Vij, Adv.
CORAM:
HON'BLE MS. JUSTICE ANU MALHOTRA
ORDER
% 27.09.2019 The status report dated 17.09.2019 from the District & Sessions Judge-cum-Spl. Judge (PC Act) CBI has been received which indicates that though the video conferencing system at the Rouse Avenue District Court has been finalized and approved by this Court and the matter is pending for requisite sanction by the Government of NCT of Delhi and in the meantime, a temporary arrangement for video conferencing with this Court and Delhi District Courts has been made in the meeting room of Rouse Avenue District Court with the help of Webcam a Mic and that thus video conferencing is available and is being used for trial purposes also as and when required.
Vide the present petition, the prayers made by the petitioners were seeking the setting aside of orders dated 30.01.2019 and 05.03.2019 of the learned Special Judge (PC Act) CBI, Central District-04, THC. Vide order CRL.M.C. 1477/2019 page no.1 of 5 dated 30.1.2019, an application under Section 315 r/w Section 284 of the Cr.PC, 1973 filed on behalf of the petitioner herein seeking to put forth his defence by issuance of the commission by dispensing with his personal appearance on medical ground was declined. Vide orders dated 30.01.2019 and 05.03.2019, the application filed on behalf of the applicant/ petitioner arrayed as the accused in CC No.532212/2016 seeking that his written submission under Section 313 (5) of the Cr.PC, 1973 be treated as oral evidence under Section 315 of the Cr.PC, 1973, was declined.
The petitioner vide the present petition has thus sought that the said impugned orders be set aside and the commission under Section 284 of the Cr.PC, 1973 for examining of the petitioner/accused at his residence be ordered and apart from the same, the written statement that the petitioner submitted under Section 313(5) of the Cr.PC, 1973 along with his affidavit be treated as oral evidence under Section 315 of the Cr.PC, 1973 and to direct the CBI to cross-examine the appellant/accused on commission under Section 284 of the Cr.PC, 1973.
On a consideration of the submissions that have been made on behalf of either side and on a perusal of the impugned orders, there is no infirmity found in the same as it is essential that the statement of the petitioner as an accused which he seeks to put forth in his evidence needs to be recorded on oath and thus the written statement that has been submitted by the petitioner under Section 313 (5) of the Cr.PC, 1973 as has rightly been held by the learned trial Court would be insufficient to fall within the ambit of Section 315 of the Cr.PC, 1973.
The learned trial Court vide the order dated 30.01.2019 as signed by CRL.M.C. 1477/2019 page no.2 of 5 the learned Special Judge placed as Annexure R-1, it has been observed inter alia to the effect that in as much as the petitioner is aged and he is suffering from severe ailments and is not in a position to give his deposition in the Court and the submissions made in the application showed that the applicant could not take much exertion and has to consume the drug morphine every six hours which left him physically and mentally destabilized and that he cannot withstand physical and emotional stress for long and was also suffering from acute pain while moving his jaws due to loss of bones in jaw joints which indicated that the applicant cannot be examined and cross examined by issuance of commission on one or two dates and it would take number of dates to complete his examination and cross examination which would cause serious inconveniences to the commissioner recording the evidence as well as to the prosecutor and defence counsel and would ultimately result in unreasonable delays, which is contrary to the object of the provision of Section 284 of the Cr.PC, 1973 and thus the learned trial Court had declined the prayer made by the petitioner seeking the examination of the petitioner through commission. The said ailment that has been spelt out in para 9 of the impugned order dated 30.01.2019 explains that the examination of the petitioner on commission would be extremely difficult and would result into unreasonable delay.
Though the observations in para 10 of the impugned order dated 30.01.2019 of the learned Special Judge to the effect that so far as the oral defence of the accused no.1 is concerned i.e. the petitioner herein, the same has already been given by him in all details in his statement recorded under CRL.M.C. 1477/2019 page no.3 of 5 Section 313 (5) of the Cr.PC, 1973 and no useful purpose would be served by reiterating the same by the accused no.1 i.e. the petitioner in his defence evidence and thus there was no requirement of issuance of commission for examining the accused no.1, cannot in any manner be accepted in as much as it is the right of the accused if he so seeks to put himself as a witness under Section 315 of the Cr.PC, 1973 to adduce witness and merely because the accused submitted his written statement under Section 313 (5) of the Cr.PC, 1973, the same cannot amount to the right of the accused being precluded from giving evidence in terms of Section 315 of the Cr.PC, 1973. The said specific observations which read to the effect:
"So far as the oral defence of the accused no.1 is concerned, the same has already been given by him in all details in his statement recorded under Section 313 (5) of the Cr.PC, 1973 and no useful purpose will be served by reiterating the same by the accused no.1 in his defence evidence. Hence, in my considered opinion there is no requirement of issuance of commission for examining accused no.1."
as mentioned in the impugned order dated 30.01.2019 are thus expunged.
However, as observed hereinabove, the examination of the petitioner on commission would cause unreasonable delay in the proceedings and taking into account the status report submitted by the District & Sessions Judge, Rouse Avenue District, the examination of the petitioner in terms of Section 315 of the Cr.PC, 1973 is allowed to be conducted through video conferencing from the District & Sessions Judge, Rouse Avenue District. The learned District & Sessions Judge, Rouse Avenue District shall make all CRL.M.C. 1477/2019 page no.4 of 5 endeavours to ensure that the video conferencing system is made workable for the recording of the testimony of the petitioner on the date that is fixed before the learned trial Court for the recording of the statement of the petitioner herein under Section 315 of the Cr.PC.
The petition is disposed of.
Copy of this order be sent to the District & Sessions Judge, Rouse Avenue District for compliance and be also given dasti as prayed.
ANU MALHOTRA, J
SEPTEMBER 27, 2019
vm
CRL.M.C. 1477/2019 page no.5 of 5