Delhi High Court
Central Bureau Of Investigation vs Ravi Dutt Pathak on 8 December, 2017
Author: Sangita Dhingra Sehgal
Bench: Sangita Dhingra Sehgal
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL. M. C. 4417/2017 & CRL.M.A.17696/2017(stay)
Order reserved on: 28th November, 2017
Order pronounced on:8th December, 2017
CENTRAL BUREAU OF INVESTIGATION .....Petitioner
Through: Mr. Anupam S. Sharma, SPP for CBI
with Ms. Prachee Satija and
Mr. Prakash Airan, Advocates.
Versus
RAVI DUTT PATHAK .....Respondent
Through: Mr. N.B. Joshi, Advocate.
CORAM:
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
1. By way of the present petition filed under Section 482 of the Code of
Criminal Procedure (hereinafter referred to as 'Cr.P.C.'), the petitioner
seeks setting aside of order dated 31.07.2017 (hereinafter referred to
as 'Impugned Order') passed by the Court of Additional Chief
Metropolitan Magistrate (ACMM) (East), Karkadooma Courts, New
Delhi, whereby the application under Section 311 Cr.P.C. filed by the
petitioner for recalling of PW-17/Sh. R.K. Sharma for further
examination was dismissed.
2. Brief facts of the present case are that a Regular Case bearing
No.5(S)/2000/SCB-1/DLI was registered by the petitioner on
27.12.2000 against the respondent, upon a complaint dated
12.12.2000 referred by the Ministry of External Affairs relating to
CRL. M. C. 4417/2017 Page 1 of 7
several forged complaints/letters addressed to the Ministry, various
political personalities etc. regarding alleged irregularities in the
functioning of B.P. Koirala Institute of Health Services, Dharan,
Nepal (BPKIHS Project). The respondent who was the Private
Secretary to the Chief Engineer (Project), was appointed on
deputation in the BPKIHS Project by the Central Public Works
Department (CPWD) amongst other officials. During investigation it
was revealed that out of the 16 instances of forged complaints, three
were engineered at the instance of the respondent. Search under
Section 93 Cr.P.C. was conducted at the respondent's premises and
voluminous incriminating documents were seized therefrom.
Chargesheet was filed against the petitioner on 06.05.2002 under
Sections 465/469/471 of the Indian Penal Code, 1860 (hereinafter
referred to as 'IPC').
3. The prosecution in all examined 18 witnesses. Final arguments were
concluded by both the parties on 30.05.2017 and the matter was
reserved for judgement for 05.07.2017.
4. In the meanwhile, the petitioner moved an application before the Trial
Court under Section 311 Cr.P.C. for recalling PW17/Sh. R. K. Sharma
for re-examination as he failed to prove his signatures on certain
important documents. However the same was dismissed by the Trial
Court vide order dated 31.07.2017. Hence the present petition.
5. Assailing the impugned order, Mr. Anupam S. Sharma, learned
counsel for the petitioner contended that the impugned order of the
CRL. M. C. 4417/2017 Page 2 of 7
Trial Court dismissing the application for recall filed by the petitioner
is erroneous and bad in law; that PW-17 was a witness to the search
conducted at the residential premises of the respondent on 04.04.2001;
that PW-17 had missed to prove his signatures on certain seized
documents which were also a part of the search memo dated
04.04.2001/Ex. PW 16/4 as the said documents were kept separately
in another file of the Court Record and inadvertently could not be
placed before the witness during examination; that the opinion
tendered by the Government Examiner of Questioned Documents
(GEQD) on the seized documents confirmed the culpability of the
respondent in the commission of the alleged offence; that for the just
decision of the prosecution case it is essential that permission be
granted to re-call and re-examine the said witness so that the above
mentioned remaining documents could also be examined and
exhibited.
6. In support of his contentions, the learned counsel for the petitioner has
relied upon the judgements in Rajendra Prasad v Narcotic Cell
Through Its Officers In-Charge, Delhi reported in AIR 1999 SC
2292, Zahira Habibullah H. Sheikh v State of Gujarat reported in
(2004) 4 SCC 158, and P Chhaganlal Daga v. M. Sanjay Shaw
reported in (2003) 11 SCC 486.
7. Per Contra, Mr. N.B. Joshi, learned counsel for the respondent
opposed the present petition and submitted that the impugned order
does not suffer from any illegality or material irregularity so as to
CRL. M. C. 4417/2017 Page 3 of 7
warrant any interference by this Court; that it is the fourth application
under Section 311 Cr.P.C. filed by the petitioner after two months of
conclusion of final arguments in the matter which has been reserved
for judgement and is therefore merely an abuse of the process of law;
that the present petition has been filed by the prosecution to fill the
lacunae in its case after 586 days of examination and discharge of
PW17 and after 62 days of completion of final arguments without
assigning any proper reason for non-filing at an earlier stage; that re-
examination of PW17 is not likely to advance the case of the
prosecution in any manner and the same is only going to delay the
trial which has been going on for the last 15 years; that the present
petition is nothing but a dilatory tactic adopted by the petitioner to
prejudice the respondent; that hence in the above mentioned
circumstances the present petition be dismissed.
8. I have heard the learned counsel for the parties and perused the
material available on record.
9. As per records, chargesheet in the present case was filed on
06.05.2002, charges were framed on 11.08.2008 and the matter was
fixed for prosecution evidence on 07.05.2009. After conclusion of
prosecution evidence on 18.12.2015 and defence evidence on
02.06.2016 the matter was fixed for final arguments on 02.08.2016
and 03.08.2016. In the meanwhile the petitioner moved a revision
petition before the Court of District and Sessions Judge against the
order of ACMM dated 07.04.2016 dismissing the third application
CRL. M. C. 4417/2017 Page 4 of 7
filed by the petitioner under Section 311 Cr.P.C. and the same was
subsequently allowed vide order dated 30.11.2016 only in respect of
one witness.
Thereafter the prosecution evidence was concluded on 27.04.2017 and
defence evidence was closed on 02.05.2017 after recording the
supplementary statement.
After hearing the final arguments on 30.05.2017 the matter was
reserved for pronouncement of final judgement on 05.07.2017.
However the petitioner again moved an application under Section 311
Cr.P.C. for re-examination of PW-17 who, though was cross-
examined and discharged on 18.12.2015.
10. The entire timeline of the present case reflects that the prosecution
was given sufficient time and ample opportunities to lead evidence
during trial and also to re-examine a material witness despite
conclusion of final arguments. It has come on record that PW-17 was
partly examined on 24.11.2015. Again on 18.12.2015 when PW-17
appeared for his cross- examination, he was not examined by the
learned PP for CBI. Even thereafter when the application filed by the
petitioner under Section 311 Cr.P.C. was allowed by the Court of
Additional Sessions Judge vide order dated 30.11.2016 in respect of
one witness, the petitioner could have prayed for the re-examination
of PW-17 alongwith other witnesses. However it is only now after the
matter has been fixed for the pronouncement of final judgement that
the petitioner has filed the present application for re-examination of
CRL. M. C. 4417/2017 Page 5 of 7
PW-17 that too merely on the ground that inadvertently PW17 had
missed out to prove certain important documents as they were placed
separately in another file of the Court Record. In the absence of any
explanation in this regard it would not be fruitful at this stage, to allow
the prosecution to re-examine PW-17 as the same would be
prejudicial to the interests of the respondent/accused who has been
facing trial for over 15 years. It is only in a case where it appears that
re-call/re-examination of a witness is essential to arrive at a just
decision of the case, the Court may allow an application under Section
311 Cr.P.C. during any stage of trial. However the same is not the
position in the present case which needs to be expedited in the interest
of justice.
11. Reference may be made to the decision in Rajaram Prasad Yadav v.
State of Bihar reported in AIR 2013 SC 3081, wherein the Apex
Court inter-alia observed as under:-
"n) The power under Section 311 Code of Criminal
Procedure must therefore, be invoked by the Court only
in order to meet the ends of justice for strong and valid
reasons and the same must be exercised with care,
caution and circumspection. The Court should bear in
mind that fair trial entails the interest of the accused, the
victim and the society and, therefore, the grant of fair
and proper opportunities to the persons concerned, must
be ensured being a constitutional goal, as well as a
human right."
12. Keeping in view the well settled principles of law, the basis for recall,
as is discernible from the present petition, does not even remotely
CRL. M. C. 4417/2017 Page 6 of 7
make out a case that such recalling is necessary for just decision of the
case or to arrive at the truth. Hence the impugned order passed by the
Trial Court does not call for any interference by this Court as the same
does not suffer from any illegality or infirmity.
13. Accordingly, the present petition alongwith the pending application
stands dismissed.
SANGITA DHINGRA SEHGAL, J.
DECEMBER 8, 2017 /gr// CRL. M. C. 4417/2017 Page 7 of 7