Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
Date of Reserve: 15 January, 2010
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Date of Order:19 January, 2010
CM(M) No. 907/2009
% 19.01.2010
Shri Nitin Gupta … Petitioner
Through: Mr. G.L.N.Murthy, Advocate
Versus
Ruchika Gupta … Respondents
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the judgment?
2. To be referred to the reporter or not?
3. Whether judgment should be reported in Digest?
ORDER
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By this petition, the petitioner has assailed an order dated 12
May, 2009 passed by the learned trial Court whereby the learned trial Court
dismissed an application of the petitioner for recalling PW-1 for cross
examination. It is submitted by the petitioner that he was in judicial custody from
th th
14 August, 2008 to 6 September, 2008 due to which he could not give proper
instructions to the Counsel and the cross examination could not be done. He
should be accorded one opportunity to cross examine the witness.
2. The Trial Court observed that the affidavit of witness of PW-1 was
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filed on record on 5 March, 2008 and examination in chief was recorded. On
that day the cross examination was not done and it was deferred subject to cost
st st
of Rs.1200/-. The matter was adjourned to 21 August, 2008 but on 21 August,
2008 again no cross examination was done while the father of the petitioner and
the Counsel were present. The Counsel stated that he had no instruction to
cross examine the witness and the matter was passed over for seeking
instruction. On the second call, the father of the petitioner stated that he had
specific instructions neither to pay cost nor to cross examine the witness. Under
these circumstances, the cross examination of the PW-1 was closed. Looking at
the conduct of the petitioner the trial Court dismissed the application.
CM(M) No. 907/2009 Shri Nitin Gupta v. Ruchika Gupta Page 1 of 2
3. It is submitted by the petitioner that since petitioner was in judicial
th th
custody from 14 August, 2008 to 6 September, 2008, he could not be present
at the hearing nor could give instructions to his Counsel and submitted that his
father had not been given any instructions by him to make statement in the Court.
The petitioner after getting released from the judicial custody made the
application asking allowing him to cross examine.
4. It is not disputed that the petitioner in this case was in judicial
custody on the date when the case was adjourned for cross examination of the
witness subject to payment of cost. Since the petitioner remained in judicial
custody for about 23 days, it is quite probable that petitioner could not give
instructions to his Counsel and also could not pay the cost. Under these
circumstances, I consider that the Trial Court should have allowed the application
for cross examination of PW-1 although the trial Court could have put some
conditions looking into the conduct of seeking adjournment for cross examination,
even when the petitioner was not in judicial custody.
5. I, therefore allow this petition. The order of the trial Court is set
aside. The petitioner is allowed to cross examine the witness PW-1 subject to
cost of Rs.20,000/-. The cost be paid by way of cheque/draft in the name of the
respondent to the respondent. Cost is meant to compensate the respondent and
not to compensate the Counsel. With these directions, the petition is disposed of.
January 19, 2010 SHIV NARAYAN DHINGRA, J.
vn
CM(M) No. 907/2009 Shri Nitin Gupta v. Ruchika Gupta Page 2 of 2
th
Date of Reserve: 15 January, 2010
th
Date of Order:19 January, 2010
CM(M) No. 907/2009
% 19.01.2010
Shri Nitin Gupta … Petitioner
Through: Mr. G.L.N.Murthy, Advocate
Versus
Ruchika Gupta … Respondents
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the judgment?
2. To be referred to the reporter or not?
3. Whether judgment should be reported in Digest?
ORDER
th
By this petition, the petitioner has assailed an order dated 12
May, 2009 passed by the learned trial Court whereby the learned trial Court
dismissed an application of the petitioner for recalling PW-1 for cross
examination. It is submitted by the petitioner that he was in judicial custody from
th th
14 August, 2008 to 6 September, 2008 due to which he could not give proper
instructions to the Counsel and the cross examination could not be done. He
should be accorded one opportunity to cross examine the witness.
2. The Trial Court observed that the affidavit of witness of PW-1 was
th
filed on record on 5 March, 2008 and examination in chief was recorded. On
that day the cross examination was not done and it was deferred subject to cost
st st
of Rs.1200/-. The matter was adjourned to 21 August, 2008 but on 21 August,
2008 again no cross examination was done while the father of the petitioner and
the Counsel were present. The Counsel stated that he had no instruction to
cross examine the witness and the matter was passed over for seeking
instruction. On the second call, the father of the petitioner stated that he had
specific instructions neither to pay cost nor to cross examine the witness. Under
these circumstances, the cross examination of the PW-1 was closed. Looking at
the conduct of the petitioner the trial Court dismissed the application.
CM(M) No. 907/2009 Shri Nitin Gupta v. Ruchika Gupta Page 1 of 2
3. It is submitted by the petitioner that since petitioner was in judicial
th th
custody from 14 August, 2008 to 6 September, 2008, he could not be present
at the hearing nor could give instructions to his Counsel and submitted that his
father had not been given any instructions by him to make statement in the Court.
The petitioner after getting released from the judicial custody made the
application asking allowing him to cross examine.
4. It is not disputed that the petitioner in this case was in judicial
custody on the date when the case was adjourned for cross examination of the
witness subject to payment of cost. Since the petitioner remained in judicial
custody for about 23 days, it is quite probable that petitioner could not give
instructions to his Counsel and also could not pay the cost. Under these
circumstances, I consider that the Trial Court should have allowed the application
for cross examination of PW-1 although the trial Court could have put some
conditions looking into the conduct of seeking adjournment for cross examination,
even when the petitioner was not in judicial custody.
5. I, therefore allow this petition. The order of the trial Court is set
aside. The petitioner is allowed to cross examine the witness PW-1 subject to
cost of Rs.20,000/-. The cost be paid by way of cheque/draft in the name of the
respondent to the respondent. Cost is meant to compensate the respondent and
not to compensate the Counsel. With these directions, the petition is disposed of.
January 19, 2010 SHIV NARAYAN DHINGRA, J.
vn
CM(M) No. 907/2009 Shri Nitin Gupta v. Ruchika Gupta Page 2 of 2