Delhi High Court - Orders
Smt Sreeda S vs State (Nct Of Delhi) on 28 April, 2022
Author: Yogesh Khanna
Bench: Yogesh Khanna
$~173
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(CRL) 943/2022
SMT SREEDA S.
..... Petitioner
Through: Mr.Shatrunjaya Shukla, Mr.Mukesh
Kr.Pandey, Advocates.
versus
STATE (NCT OF DELHI)
..... Respondent
Through: Mr.Avi Singh, ASC for State with
Mr.Karan Dhalla, Ms.Mizba Dhabar,
Advocates.
CORAM:
HON'BLE MR. JUSTICE YOGESH KHANNA
ORDER
% 28.04.2022 CRL.M.A. 7921/2022
1. Exemption allowed, subject to all just exceptions.
2. The application stands disposed of.
W.P.(CRL) 943/2022
3. This petition is filed for setting aside of order dated 23.03.2022 whereby NBWs were issued against the petitioner herein. A prayer is also made for examining the petitioner either through commission or through video conferencing.
4. Considering the nature of the petition no notice is required to be issued to the respondents, since the advance notice has already been issued.
5. Admittedly the petitioner is a witness in a complaint case no.4971/2019 filed by one Mr.Bharat Singh Rawat against one Mr.Mukesh Kumar Wadhwa. The petitioner herein has been included in the list of witnesses at serial no.23.
6. If one peruse the order dated 09.12.2019 passed by the learned MM it Signature Not Verified Digitally Signed By:VIJAYA LAKSHMI DOBHAL Signing Date:29.04.2022 16:57 shows the complainant himself had made a request for examination through video conferencing as he would not be able to bear the expenses of her journey to Delhi. Nevertheless, the learned trial court was inclined to call her and examine her physically and since she could not appear before the Court, hence vide impugned order dated 23.03.2022 the learned trial court issued the NBWs against the petitioner. The impugned order runs as under:
"Vide present order, I shall dispose of the application moved by Ld. Counsel for witness Ms. Sreeda seeking recalling of NBWs and issuance of Commission instead.
It is submitted that the applicant/witness is undergoing IVF treatment at Chennai and at present is not in a condition to present herself before this court. It is submitted that application u/s 205 CrPC dated 24.11.2021, seeking exemption was dismissed and NBWs were issued against the accused. The applicant prays that the applicant may be heard on video conferencing or commission for her examination be issued.
Per contra, the application has been vehemently opposed by the complainant. It is submitted by complainant that vide order dated 09.12.2019, the request of the witness to be examined by Video Conferencing had already been dismissed and the present application is a sheer wastage of precious judicial time. The witness has habitually been avoiding service on one pretext or the other, even applications for expunging the name of the said witness had been moved by the Ld. Counsel for the said witness twice and both times they were dismissed. It is also argued by the complainant that as per Chapter X of Delhi High Court Rules, a witness has no locus standi to move an application for issuance of Commission and only parties can move such an application. Also, the application has to be supported which is not the case. It is submitted that the complainant had already deposited diet money of Rs. 6,000/- on 15.12.2020 for the travel expenses and now the clock cannot be put back by issuance of Commission. Before proceeding further, the purpose for issuance of Commission needs to be analyzed. The provision u/s 284 Cr.P.C. deals with the issuance of Commission."
7. A bare perusal of the order itself would show the applicant had moved an application for recalling of the NBWs on the ground she is undergoing IVF treatment at Chennai and is not in a position to appear before the Court.
Signature Not Verified Digitally Signed By:VIJAYA LAKSHMI DOBHAL Signing Date:29.04.2022 16:57The learned trial court ignored her prayer for issuance of commission to examine her and her application for recalling NBWs was also dismissed vide an order of even date.
8. It is the submission of the learned counsel for the petitioner that the petitioner, even otherwise, has no idea about the facts of the case and is unnecessarily being called by the complainant, but nevertheless, she has every intention to appear before the learned Trial Court but as she is undergoing IVF treatment she is unable to appear before the Court physically. She earlier also made a request to appear through video conferencing or to examine her through commission, which prayers have since been declined by the Court.
9. Admittedly only pre-summoning evidence is being led by the complainant. Since it is only a pre-summoning evidence the witnesses is not to be put to cross-examination by accused. Cognizance of the offence has not yet being taken. Thus, considering the medical condition of the witness as also the distance she is residing, she be examined only through video conferencing.
10. In view of the above the impugned order(s) dated 23.03.2022 viz. qua issuance of NBWs and recalling of such NBWs are set aside and the learned trial court is directed to examine the petitioner through video conferencing for a date to be fixed. The witness be duly informed of the date.
11. In view of the above the petition stands disposed of along with pending application(s), if any. Order dasti.
YOGESH KHANNA, J.
APRIL 28, 2022 DU Signature Not Verified Digitally Signed By:VIJAYA LAKSHMI DOBHAL Signing Date:29.04.2022 16:57