Full Judgment Text
(VIA VIDEO CONFERENCING)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on : 12.04.2022
% Pronounced on : 12.07.2022
+ CRL.M.C. 1276/2021
DEVENDER @ MANU .....Petitioner
Through: Mr. Bankim Kulshreshtha, Advocate.
Versus
THE STATE (NCT OF DELHI) .....Respondent
Through: Dr. M.P. Singh, APP for the State.
CORAM:
HON'BLE MR. JUSTICE RAJNISH BHATNAGAR
JUDGMENT
RAJNISH BHATNAGAR, J.
1. By way of this petition filed under section 482 Cr.P.C read with
Article 227 of the Constitution of India, the petitioner is seeking following
reliefs:-
“a. command or direct, any appropriate order, direction
against the impugned and set aside arbitrary order dated
08.02.2021 passed by Ld. Court presided by sh. Kuldeep
Narayan, Additional Sessions Judge-04, in SC No. 105/2018,
FIR No. 457/2017, U/s 302/307/34 IPC, P.S. GEETA Colony,
East District, Karkardooma Courts, Delhi by partly allowing
CRL.M.C. 1276/2021 1
Signature Not Verified
Digitally Signed By:KAMAL
KANT MENDIRATTA
Signing Date:20.07.2022
15:59:03
(VIA VIDEO CONFERENCING)
application U/s 311 Cr. P.C. and ignoring the guiding
principles of criminal administration of justice.
b. Pass any such further order for direction as this Hon'ble
Court may deem just and fit in the facts and circumstances of
the case and in the interest of justice.”
2. Heard. Records perused.
3. In the instant case, the petitioner is aggrieved by the order dated
08.02.2021 passed by learned ASJ. The brief history of the case has been
captured in the following words in the order of the learned ASJ as under:
“Per contra, Id. Prosecutor while opposing the application
submitted that all the afore-mentioned prosecution witnesses
were duly examined and cross examined by the previous
counsel for the accused Devender @ Monu and therefore, a
change of new counsel cannot be said to give a fresh right to
the accused for further cross-examination of the witnesses.
Further the statements of all the ld. Counsels for the accused
persons was recorded u/s 294 Cr.PC on 07.03.2019 as they did
not dispute the genuineness of documents and accordingly the
name of those witneses were dropped from the list of witnesses.
Hence, they cannot be summoned u/s 311 Cr.PC for their
examination.
I have heard the submissions and perused the record carefully.
I have also gone through the cited judgments.
As per record, PW1 Sunil Khera and PW2 Tejender Arora only
deposed regarding identification of the dead body of the
deceased and, therefore, are not material witnesses. They were
also not cross-examined by the Id. Counsel for the accused
persons despite opportunity available to them. Hence, there is
no need to summon them. Even otherwise, the cross-
examination of these two PWs cannot travel beyond the
periphery of their examination in chief which the Id. Counsel
CRL.M.C. 1276/2021 2
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Digitally Signed By:KAMAL
KANT MENDIRATTA
Signing Date:20.07.2022
15:59:03
(VIA VIDEO CONFERENCING)
for the accused Devender @ Manu intends to do. The
contention of the ld. Counsel in this regard is not meritorious.
PW3 Ashish Tyagi was cross-examined at length by Sh. Anil
Kumar Saxena, adv. who earlier was representing accused
Devender @ Monu. PW3 was also cross-examined at length by
other counsel representing other accused persons.
In these circumstances, I find merit in the contentions of the ld.
Prosecutor that by a change of counsel, PW3 cannot be
allowed to be subjected to cross examination again as there
will not be an end to cross-examination In this manner as every
new counsel engaged subsequently would like to cross-examine
the witneses once again. Therefore, in my considered opinion,
PW1, PW2 and PW3 are not required to be summoned again
for their further cross-examination.
As far as testimony of PW6 Sh. Gaurav Sharma is concerned, a
perusal of the same would reveal that he was also cross-
examined at length by other counsel representing the other
accused persons. However, Sh. S.B.Anand, adv. present on
behalf of accused Devender @ Monu chose not to cross-
examine PW6 despite opportunity available to him. PW6 is a
material witness and for just and fair trial and to come to a just
conclusion, in my considered opinion, there is no harm if one
more opportunity be given to the accused Devender @ Monu
for his cross-examinaton despite the fact that cross-
examination conducted by the counsels for the other accused
persons would be read in evidence for all the accused persons
including accused Devender @ Monu.
Further, PW7 ASI Kanwar Pal and PW8 ASI Sonu Kaushik
were examined by the prosecution to prove the PCR Form and
preparation of site plan only. PW8 only was cross-examined by
one counsel whereas the other counsel, including the counsel
CRL.M.C. 1276/2021 3
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Digitally Signed By:KAMAL
KANT MENDIRATTA
Signing Date:20.07.2022
15:59:03
(VIA VIDEO CONFERENCING)
for the accused Devender @ Monu chose not to cross examine
PW7 and PW8. The testimony of both PW7 and PW8 are formal
in nature. Therefore, there is no requirement to summon both
the PW7 and PW8 also for their cross-examination.
As far as the prayer to summon PWs Dr. Ravi, Dr. Manish
Kumar Gaur, Dr. Vinesh Kumar, Ms. Nabeela Wall, Ld. MM,
Sh. Gaurav Saluja, Ms. Megha Arora, Sl George Abrahim &
Ms. Richa Parihar, Ld. MM is concerned, it suffice to note that
vide order dated 07.03.2019, the joint statement of the ld.
Counsels for the accused persons was recorded u/s 294 Cr.PC
whereby they did not dispute the genuineness of the documents
like MLC’s, TIP proceedings, Superdarinama of the vehicles,
certificate u/s 65 B of the Indian Evidence Act regarding PCR
form and statements u/s 164 Cr.PC of the witnesses and
accordingly the afore-mentioned witnesses were dropped from
the list of witnesses.”
4. It is evident from a cursory reading of the learned ASJ's order that the
party is not required to demonstrate the authenticity because counsel may do
so in accordance with Section 294 Cr.P.C. According to Section 294 Cr.P.C,
some papers are exempted from formal proof requirements, and if the
veracity of any such document is not contested, the document may be read
in evidence without a witness to attest to the signer's signature. The proviso
attached to Section 294 Cr.PC also states that the Court may demand proof
of such signatures. It is therefore obvious that there was no question about
the authenticity of those documents, but this does not indicate that the
simple execution of those documents may be considered to be incriminating
to the accused. Section 294 Cr.P.C. does little more than just to eliminate the
need for formal proof of the papers. As already observed, those witnesses
CRL.M.C. 1276/2021 4
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Digitally Signed By:KAMAL
KANT MENDIRATTA
Signing Date:20.07.2022
15:59:03
(VIA VIDEO CONFERENCING)
have already been dropped from the list of witnesses and, therefore, there is
no reasonable ground to summon them again.
5. It is sufficient to say that the learned Counsel appears to have
neglected to properly examine the chargesheet in pertaining to the
contention regarding summoning the individuals using mobile numbers
8383986431 and 9818660660 as mentioned in the chargesheet because,
according to the list of witnesses filed alongside the chargesheet, PW
Praveen Bansal is the user of mobile no. 8383986461 and PW Puneet Malik
is the user of mobile no. 9818660660. Although the PCR Form dated
17.09.2017 correctly listed the mobile number +91-8383986431, the fact
still remains that the correct mobile number can be corroborated during the
testimony of the stated prosecution witnesses. As a result, I do not find any
reason to interfere with the order of learned ASJ, especially when number of
counsels have been given opportunities for examination and mere changing
of counsel at every stage does not indicate that every counsel must be
granted opportunity to examine or cross-examine the witnesses as per their
whims and fancies and if the same is done, there would be no end to it.
6. Therefore, in view of the above, I do not find any merit in the petition,
the same is accordingly dismissed.
RAJNISH BHATNAGAR, J
JULY 12, 2022
CRL.M.C. 1276/2021 5
Signature Not Verified
Digitally Signed By:KAMAL
KANT MENDIRATTA
Signing Date:20.07.2022
15:59:03