Punjab-Haryana High Court
Ranbir @ Dallu vs State Of Haryana on 4 May, 2012
1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl. Misc. No. M-3672 of 2012
Date of Decision: 04.05.2012
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Ranbir @ Dallu
.. Petitioner
VS.
State of Haryana .. Respondent
CORAM:HON'BLE MR. JUSTICE VIJENDER SINGH MALIK
Present:- Mr. D.S. Bali, Sr. Advocate with
Ms. Poonam Sharma, Advocate
for the petitioner.
Mr. Sagar Deswal, AAG Haryana
Mr. Balraj Singh Rathee, Advocate
for the complainant.
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VIJENDER SINGH MALIK, J.
Ranbir @ Dallu, one of the accused facing trial in a case registered by way of FIR No. 154 dated 26.4.2009 at Police Station Sadar Sonepat for an offence punishable under sections 148, 302 and 120-B read with section 149 IPC and section 25 of the Arms Act, has filed this petition under the provisions of section 482 Cr.P.C. for quashing the order dated 5.12.2011 passed by learned Additional Sessions Judge, Sonepat, whereby the application of the petitioner filed under section 311 Cr.P.C. for recalling of certain witnesses for further cross-examination was dismissed.
For the murder of Sanjay, his brother Chand Roop @ Chandu lodged the aforesaid FIR against the petitioner and others. 2 They were sent to stand trial. During the course of trial, Chand Roop was examined as PW1, Rajbir as PW2 and Jagminder as PW10. After their examination, the petitioner brought application (Annexure P-5) for recalling the aforesaid witnesses as well as other witnesses namely ASI Mahender (PW13), EHC Jai Singh(PW15).
Before this court, learned senior counsel appearing for the petitioner has confined his submissions to the recalling of PW1, PW2 and PW10 only and has given up his claim to the recalling of other two witnesses. The claim made in the application filed under section 311 Cr.P.C. was as under:-
Recalling of the above mentioned five witnesses for cross examination is essential to the just decision of the case. It is in the interest of justice and equity that the applicant must be given an opportunity to show his innocence in the case. The witnesses mentioned above are the most material witnesses of the case. They have been examined in the case but they have not been cross- examined on behalf of the accused Ranbir @ Dallu. It is further claimed that in order to bring out truth from the witnesses, the accused has only one weapon and the same is of cross-examination. Opportunity to cross- examine the witnesses is to be fully allowed. The evidence of the prosecution is still going on. The recalling of the above mentioned witnesses for cross-examination will not hinder the progress of the case in any manner. It 3 will also not put the prosecution at disadvantageous position. It is further claimed that provisions of section 311 read with 231(2) Cr.P.C. give ample power to this court for recalling the witnesses for cross-examination for just decision of the case.
Hearing learned public prosecutor for the State duly assisted by learned counsel for the complainant as well as learned counsel for the applicant and other accused, learned Addl. Sessions Judge, Sonepat has dismissed the application being devoid of merits vide orders dated 5.12.2011.
Dis-satisfied with the said order, present petition has been brought.
With a view to justify the filing of the petition under section 482 Cr.P.C. instead of a revision under section 397 Cr.P.C., learned senior counsel for the petitioner has submitted that though, an alternative remedy was available to the petitioner by way of revision, yet the remedy availed by him under the provisions of section 482 Cr.P.C. cannot be denied for the only reason that an alternative remedy was available to him. In this regard, he placed reliance on a judgment of Hon'ble Supreme Court of India in Dhariwal Tobaco Products Ltd. and Ors. Vs. State of Maharashtra & Anr. 2009(1) RCR(Crl.) 677, where it is laid down that an application under section 482 Cr.P.C. cannot be dismissed only on the premise that an alternative remedy under section 397 Cr.P.C. was available to the 4 accused.
Learned counsel for the petitioner has further submitted that the Additional Sessions Judge has dismissed the application of the petitioner for three reasons. According to him, the first reason is that change of lawyer does not provide a ground for recalling of the witnesses for cross-examination. According to him, the second ground with learned Addl. Sessions Judge was that recalling of the witnesses already examined would be disadvantageous to the prosecution and the last ground for rejecting the prayer was that there is no averment made in the application that previous counsel was not competent. He has submitted that an opportunity is required to be given to the accused to elicit certain facts from the witnesses. According to him, no prejudice would be caused to the prosecution by recalling the witnesses. He has submitted that for the assistance of the court, he has specified the points in para 2(iii) of the paper book on which the witnesses after recalling would be cross-examined. He has submitted that further cross-examination would not take more than a couple of hours.
Learned State counsel as well as learned counsel for the complainant have submitted that PW1 was examined on 19.11.2009 and though his cross-examination on that day was deferred on the request of the accused, yet the cross examination was also over on 20.9.2010. They have submitted that the application for recalling of the witnesses had been made on 23.8.2011. The attention of the court is drawn towards the statement of PW1(Annexure P-1) who has 5 been cross-examined by three advocates on behalf of the accused. It is submitted that all the three advocates represented all the accused and it is not the case where individual counsel is representing one or two accused. He has submitted that though the points have been formulated in the paper-book to which further cross-examination of the witnesses recalled would be confined, yet the impugned order is not bad for any reason. According to them, there are good reasons for dismissing this revision because nothing specific has been pleaded in the application to justify the prayer for recalling of the witnesses.
The first point on which the witnesses examined as PW1, PW2 and PW10 are required to be further cross-examined, as per para 2(iii) of the paper-book is as under:-
(a) Pre-incidence circumstances to site plan no.3 photography of the site and the presence of the prosecution witnesses (PW1, PW2 and PW10).
This court fails to understand as to what this sentence conveys. To my dismay, learned counsel for the petitioner could also not make it clear as to what this point conveys.
One of the other points is regarding telephonic calls with PW1. It is not mentioned as to whom he had made the calls which are relevant for the decision of the case. The plea of alibi and the questions regarding conspiracy are the aspects which were well within the knowledge of the accused and their counsel at the time of cross examination of the witnesses. It is not the case that the 6 accused could not lay their hands upon some circumstances at the time when the witnesses were under examination and that those points are material and are required to be put to the witnesses.
The application, which has been dismissed vide the impugned order, is completely vague. It would be apparent from the contents thereof as reproduced above. On such vague pleas, it cannot be said that the requirements of section 311 Cr.P.C. stood satisfied by the accused-applicant.
Learned Addl. Sessions Judge, Sonepat might have dismissed the application for any reason, I myself do not find any ground to interfere with the impugned order of dismissal of the application. Consequently, the petition has no merit and is dismissed.
May 04,2012 (VIJENDER SINGH MALIK) Jiten JUDGE