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Central Bureau Of Investigation vs Mrs. Neetu Sharma And Ors on 1 December, 2022

Author: Yogesh Khanna

Bench: Yogesh Khanna

                                $~20
                                *    IN THE HIGH COURT OF DELHI AT NEW DELHI
                                +    CRL.M.C. 502/2021, CRL.M.A. 14540/2022
                                     CENTRAL BUREAU OF INVESTIGATION                             ..... Petitioner
                                                           Through: Mr.Nikhil Goel, SPP and Mr.Kartik
                                                                        Kaushal, Advocate.
                                                           versus
                                     MRS. NEETU SHARMA AND ORS.                             ..... Respondents
                                                           Through: Mr.Pratap            Shankar              and
                                                                        Mr.Dharmender Gupta, Advocates for
                                                                        R5.
                                     CORAM:
                                     HON'BLE MR. JUSTICE YOGESH KHANNA
                                                           ORDER

% 01.12.2022

1. This petition is filed with the following prayer:-

(a)Set aside the impugned order dated 17.08.2020 passed by the Sh. Shailender Malik , Ld. Special Judge, CBI, PC Act, Rouse Avenue Courts, New Delhi arising out of CBI case RC 220 20l3 E 00 13 EOU-VI/EO-II/New Delhi; and/or

2. Admittedly, an application was filed by the petitioner under Section 311 Cr P C for calling the upon the accused person either to admit or deny the genuineness of the documents annexed as Annexure A1 and in case of denial, recall the witnesses as mentioned in Annexure A2 to the application. The said application was dismissed by the learned Trial Court vide an impugned order dated 17.08.2020 stating inter alia as under:-

13. Being guided by above discussed proposition, in the facts of the present case, first of all it be noted that application is completely silent as to why those documents as per details given in Annexure-I were not proved during the trial. While this Court has been very liberal in interpreting the provision of Section 311 Cr.P.C. for each of the parties to ensure that they can lead evidence available and prove documents as per law but at the same time it is also important that one who moves the application CRL.M.C. 502/2021 Page 1 of 7 Signature Not Verified Digitally Signed By:PRADEEP SHARMA Signing Date:03.12.2022 13:04 under Section 311 Cr.P.C. must give cogent reasons for recalling any witness or for proving any document left to be proved during the trial. There is no bar for allowing the application under Section 311 Cr.P.C. even at belated stage of trial when P.E. has been closed. But at the same time it has also to be ensured by the Court that accused must not be prejudiced for moving an application at belated stage of trial when prosecution was given sufficient opportunity to lead evidence for period of about four years.

As noted above 57 witnesses have been examined by the prosecution, out of those witnesses, 9 witnesses are sought to be recalled. Obvious question arises why those documents were not proved when these witnesses being examined. These witnesses were examined way back in the year 2016, 2017 and 2 018 whereas present application has been moved after 3/4 years when stage of Section 313 Cr.P.C. is going on. Important aspect in this regard to be noted is that prior to moving of this application, prosecution had already moved three applications under Section 311 Cr.P.C. which were duly allowed and the witnesses were recalled and examined during the trial. Whereas in respect of the present application, application is absolutely silent as to why documents were not proved as per law earlier- Details of the documents have also not been given as to how these documents are essential.

14. Provision of Section 294 Cr.P.C. cannot be invoked. at this stage when stage of Section 313 Cr.P.C. is going on. provision of Section 294 Cr.P.C. is with the object to cut short the trial so that prosecution can examine those witnesses and prove those documents which are really in dispute. In this case trial is almost complete as P.E. has already been closed. Moreover the tone and tenor of language of the application indicates as if prosecution is taking it for granted that provision of Section 294 Cr.P.C. is bound to be allowed at any stage, whereas such prayer is against the law. Reliance has been rightly placed on judgments in case of Montari Industrles r inited (supra) and Barjor Buchiya (supra). not in every situation be a reason for denial of the same, but at the same time a deliberate delay, total non-application of mind and non mentioning of any reason to explaining the delay would certainly give an impression as if the prosecution is seeking judicial process for granted. As per the legal proposition of recalling any witness as discussed above, it is established law, that none of the parties be it prosecution or the CRL.M.C. 502/2021 Page 2 of 7 Signature Not Verified Digitally Signed By:PRADEEP SHARMA Signing Date:03.12.2022 13:04 accused persons should be prejudiced in allowing the application under Section 311 Cr.P.C. Ld. Counsel for accused no.1 to 3 rightly pointed out that even during the time when Investigating Officer (PW57) was being examined it took around one year for completion of his evidence primarily because CBI has sought adjournments on many occasions due to non-availability of IO. Even during this period of time prosecution could not move such application.

16. Even otherwise on merits careful examining all documents sought to be proved and the witnesses sought to be recalled, it would be evident that most of these witnesses have deposed as per their previous statements under Section 161 Cr.P.C. Without expressing much on the merits of the matter, prosecution at this stage cannot be allowed to rebuild its case and to prove numerous documents as per the details given in Annexure-I. If such application is allowed, it would certainly amount to re-trial and would certainly cause prejudice to the accused persons.

3. The learned counsel for petitioner submits the prime reason for rejection of application under Section 311 Cr P C was the petitioner had moved previously applications under Section 311 Cr PC, which were allowed and this application was moved at a very belated stage of trial i.e. when the statement of accused under Section 313 Cr P C were being recorded. Presently the matter is pending for final arguments.

4. The learned counsel for petitioner urges the learned Trial Court had not appreciated the provision of Section 311 Cr PC. It notes as under:-

"311. Power to summon material witness, or examine person present. Any court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re- examine any person already examined; and the court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case".

5. It is argued Section 311 Cr P C has two parts viz the first part being discretionary, however, the second portion leaves no discretion for the Court to allow the application, if the evidence appears to the Court to be essential to the just decision of the case. It is submitted the documents as also the witnesses as per list filed with the application annexure P4 are all necessary for the just decision of the case as mentioned in the application. But, nevertheless, as to if those are relevant to the case or not, the application is silent.

6. In Varsha Garg vs The State of Madhya Pradesh & Others, Crl Appeal No.1021/2022 decided on 08.08.2022, the Hon'ble Supreme Court held:-

28. Having clarified that the bar under Section 301 is inapplicable and that the appellant is well placed to pursue this appeal, we now examine Section 311 of CrPC. Section 311 provides that the Court ―'may':

(i) Summon any person as a witness or to examine any person in attendance, though not summoned as a witness; and

(ii) Recall and re-examine any person who has already been examined.

This power can be exercised at any stage of any inquiry, trial or other proceeding under the CrPC. The latter part of Section 311 states that the Court ―shall summon and examine or recall and re-examine any such person ―if his evidence appears to the Court to be essential to the just decision of the case. Section 311 contains a power upon the Court in broad terms. The statutory provision must be read purposively, to achieve the intent of the statute to aid in the discovery of truth.

29 The first part of the statutory provision which uses the expression ―may postulates that the power can be exercised at any stage of an inquiry, trial or other proceeding. The latter part of the provision mandates the recall of a witness by the Court as it uses the expression ―shall summon and examine or recall and re- examine any such person if his evidence appears to it to be essential CRL.M.C. 502/2021 Page 4 of 7 Signature Not Verified Digitally Signed By:PRADEEP SHARMA Signing Date:03.12.2022 13:04 to the just decision of the case. Essentiality of the evidence of the person who is to be examined coupled with the need for the just decision of the case constitute the touchstone which must guide the decision of the Court. The first part of the statutory provision is discretionary while the latter part is obligatory.

38 Having dealt with the satisfaction of the requirements of Section 311, we deal with the objection of the respondents that the application should not be allowed as it will lead to filling in the lacunae of the prosecution's case. However, even the said reason cannot be an absolute bar to allowing an application under Section 311.

42. The Court is vested with a broad and wholesome power, in terms of Section 311 of the CrPC, to summon and examine or recall and re-examine any material witness at any stage and the closing of prosecution evidence is not an absolute bar. This Court in Zahira Habibulla H. Sheikh (supra) while dealing with the prayers for adducing additional evidence under Section 391 CrPC at the appellate stage, along with a prayer for examination of witnesses under Section 311 CrPC explained the role of the court, in the following terms:

43. The courts have to take a participatory role in a trial. They are not expected to be tape recorders to record whatever is being stated by the witnesses. Section 311 of the Code and Section 165 of the Evidence Act confer vast and wide powers on presiding officers of court to elicit all necessary materials by playing an active role in the evidence- collecting process. They have to monitor the proceedings in aid of justice in a manner that something, which is not relevant, is not unnecessarily brought into record. Even if the prosecutor is remiss in some ways, it can control the proceedings effectively so that the ultimate objective i.e. truth is arrived at. This becomes more necessary where the court has reasons to believe that the prosecuting agency or the prosecutor is not acting in the requisite manner. The court cannot afford to be wishfully or pretend to be blissfully ignorant or oblivious to such serious pitfalls or dereliction of duty on the part of the prosecuting agency. The prosecutor who does not act fairly and acts more like a counsel for the defence is a liability to the fair judicial system, and CRL.M.C. 502/2021 Page 5 of 7 Signature Not Verified Digitally Signed By:PRADEEP SHARMA Signing Date:03.12.2022 13:04 courts could not also play into the hands of such prosecuting agency showing indifference or adopting an attitude of total aloofness.

(emphasis supplied) Further, in Zahira Habibullah Sheikh (5) (supra), the Court reiterated the extent of powers under Section 311 and held that:

27. The object underlying Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the court to summon a witness under the section merely because the evidence supports the case of the prosecution and not that of the accused.

The section is a general section which applies to all proceedings, enquiries and trials under the Code and empowers the Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311 the significant expression that occurs is at any stage of any inquiry or trial or other proceeding under this Code. It is, however, to be borne in mind that whereas the section confers a very wide power on the court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind.

(emphasis supplied)

7. The learned counsel for respondent objects to prayer made in the petition and submits if the application of petitioner is allowed at this stage, it may prejudice the case of the accused persons at fag end of the trial as no reasons are mentioned in the application under Section 311 Cr PC.

8. I have heard the submissions made by the learned counsel for parties.

9. In fact the application moved under Section 311 Cr P C does not mention any reason as to how these documents are essential and necessary for just decision of the case. Since the matter is serious, one involving provisions of the PC Act and in view of decision in Varsha Garg (supra), I am inclined to afford one more opportunity to the prosecution to move an appropriate application in a suitable format stating inter alia the reasons as to how such documents and witnesses are necessary to be examined and/or are essential for just decision of the case. The said application be decided on merits after giving due opportunity to the respondents of being heard.

10. In view of above, while setting aside the impugned order dated 17.08.2020, the petitioner may move an appropriate application giving such details within a week before the learned Trial Court, which shall be dealt with in accordance with law.

11. Undisputedly, the matter is quite an old one hence the learned Trial Court shall endeavour to conclude the aforesaid exercise as expeditiously as possible.

12. The petition stands disposed of in above terms. Pending application, if any, also stands disposed of. No order as to costs.

13. Copy of this order be communicated to the learned Trial Court for information and compliance.

YOGESH KHANNA, J.

DECEMBER 01, 2022 M CRL.M.C. 502/2021 Page 7 of 7 Signature Not Verified Digitally Signed By:PRADEEP SHARMA Signing Date:03.12.2022 13:04