DINESH CHANDER SHARMA vs STATE OF HP

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High Court of H.P.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MMO No. 658 of 2026
Reserved on: 15.07.2026
Date of Decision: 21.07.2026.
Dinesh Chander Sharma ...Petitioner
Versus
State of H.P. ...Respondent
Coram
Hon’ble Mr Justice Rakesh Kainthla , Judge.
1
Whether approved for reporting? Yes
For the Petitioner : Petitioner in person
For the Respondent/State : Mr Prashant Sen, Deputy
Advocate General.
Rakesh Kainthla, Judge
The petitioner has filed the present petition against
the order dated 06.03.2026 passed by the learned Chief Judicial
Magistrate, Una, vide which his application for seeking recall of
the prosecution witness Vinod Kumar Kapila for his further
cross-examination was dismissed.
2. Briefly stated, the facts giving rise to the present
petition are that the petitioner is an accused before the learned
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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Trial Court. Prosecution has cited one Vinod Kumar Kapila as a
witness. The petitioner cross-examined him for 3 days running
into 35 pages, and the learned Trial Court closed the right of the
cross-examination of the witness on 20.06.2025. Subsequently,
the petitioner filed an application seeking the recall of the
witness, asserting that the cross-examination of the witness was
necessary to substantiate the claim under Section 250 Cr.P.C. to
the satisfaction of the Court. The witness belonged to an
intellectual class, and it was not easy to extract the truth from
such a witness. Therefore, it was essential to cross-examine him
at length. The court is bound to arrive at the truth, and the
petitioner was within his right to cross-examine the witness to
demonstrate the truth. Therefore, it was prayed that the
application be allowed and the witness be recalled for further
cross-examination.
3. The application was opposed by the State.
4. Learned Trial Court held that the petitioner had
examined the witness at length for 3 days, and the cross-
examination ran into 35 pages. The cross-examination cannot be
used to harass the witness. The Court had also closed the right of
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cross-examination, and it could not review the order passed by
it. Allowing the application would amount to a review of the order
passed by the Court. Therefore, the application was dismissed.
5. Being aggrieved by the order passed by the learned
Trial Court, the petitioner has filed the present petition asserting
that the order has been passed against the principles of
administration of justice and without due application of the
mind. Learned Trial Court failed to exercise the jurisdiction
vested in her under Section 319 of the Cr.P.C. The petitioner has
the right to demonstrate his innocence and also to show that he
was entitled to compensation under Section 250 of the Cr.P.C. He
has brought on record sufficient material to claim an order of
acquittal on the principle of the benefit of doubt, but he wants a
clear acquittal and compensation. Therefore, it was prayed that
the present application be allowed and the order passed by the
learned Trial Court be set aside.
6. I have heard the petitioner, who appeared in person
and Mr Prashant Sen, Deputy Advocate General for the
respondent/State.
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7. The petitioner, who appeared in person submitted
that the Court has ample power to recall any witness, if the
evidence appears to be essential to the just decision of the case.
The petitioner has a right to cross-examine a witness. The Court
could not have refused to permit the petitioner to cross-examine
the witness on the ground that cross-examination continued for
3 days without recording a finding that the irrelevant questions
were asked. The learned Trial Court erred in holding that
allowing the application would amount to the review of the order
passed by the learned Trial Court closing the evidence. Therefore,
he prayed that the present petition be allowed and the order
passed by the learned Trial Court be set aside.
8. Mr Prashant Sen, Deputy Advocate General for the
respondent/State, submitted that the cross-examination of the
witness had continued for 3 days running into 35 pages. The
cross-examination cannot be used to harass a witness and waste
the precious time of the Court. The petitioner has not mentioned
the purpose of cross-examining the witness, and a vague
averment that the cross-examination is necessary to seek
compensation under Section 250 of the Cr.P.C. is not sufficient to
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recall the witness. Therefore, he prayed that the present petition
be dismissed.
9. I have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
10. The order passed by the learned Trial Court shows
that the cross-examination of the witness continued for three
days and filled 35 pages of the record of the learned Trial Court. It
was laid down by the Andhra Pradesh High Court in Public
Prosecutor High Court of A.P. Hyderabad v. Repalli Ramadoss , 1976
SCC OnLine AP 93: 1976 ALT 558 that the cross-examination
running into 18 typed pages cannot be permitted. It was observed
at page 563:
“14. Before we proceed to examine the soundness of the
conclusions of the Court below, we would pause to
comment on one striking feature noticed by us while going
through the evidence in the case. The record of evidence
has been unduly swelled by repetitions and irrelevancies in
the cross-examination of the direct witnesses. The Chief
examination of P.W. 1 runs to four typed pages. But the
cross-examination occupied 18 pages. Prolonged
emphasis is laid on trivial matters. We could not evade the
impression that the Additional Sessions Judge had
permitted himself to be wearied by endless and pointless
cross-examination. Sessions Judges and Magistrates have
to be vigilant and should exercise effective control over the
extent and manner of cross-examination of witnesses.
They have the undoubted control and discretion to
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determine the length of time and the extent to which the
witnesses may be cross-examined. It is the duty of the
Presiding Officers to protect the witnesses against
irrelevant enquiries and overrule a question repeated after
being several times substantially answered. It is no doubt
true that cross-examination is one of the most important
processes for the elucidation of facts and testing the
veracity of a witness and the accuracy of the story
unfolded by him. So all reasonable latitude must be shown.
But the Judge has the discretion as to how far and how
long the cross-examination can go. Prolix examination
and cross-examination must be checked. Irrelevant topics
sometimes pursued at great length and persistence shown
in going over the same ground again and again in the hope
of witnesses' discrepant must not be endured or
permitted. Exercise vigilance and control over the Court
proceedings by Judges and Magistrates will not only save
waste of public time and money but also help clear the
backlog of arrears. It would be quite opposite at this stage
to recall what Viscount Sankey L.C. observed in Mechanical
and General Inventions Company Limited and Lehwess v.
Austin and the Austin Motor Company Limited [1935 Appeal
Cases, 346 ]. At page 360, the Lord Chancellor observed.
“………a protracted and irrelevant cross-examination
not only adds to the cost of litigation but is a waste of
public time.”
11. It was laid down by the Madhya Pradesh High Court in
Govind v. State of M.P. , 2004 SCC OnLine MP 344: (2005) 1 MP LJ
549 that cross-examination cannot be used as a weapon of
harassment and the cross-examination running into 30 pages
and 60 paragraphs is an abuse of the process of the Court. It was
observed at page 564:
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“26. In this case, there was a lengthy cross-examination
from P.W. 1 and P.W. 2, which runs in thirty pages and
sixty paragraphs, out of which many paragraphs are
without much relevance to the case. Here we would like to
mention that in many cases we have seen that Shri V.R.
Gupta, Advocate of Morena, is in the habit of making
lengthy cross-examinations of the witnesses and many a
time without their relevance. Shri J.P. Gupta, learned
senior Advocate, while arguing the case, has agreed that
lengthy and irrelevant cross-examination is never helpful
to the accused persons. Many times, the defence lawyers
themselves get clarified most of the discrepancies arising
during the cross-examination in one paragraph, and they
are getting them contradicted in the other paragraph. We
have seen that in most of the cases, such a lengthy cross-
examination is not helpful to the accused persons, but
rather damages the case of the defence and leads to a
conviction of the accused persons. It is true that the
purpose of cross-examination is to bring the truth on
record and to help the Court in knowing the truth of the
case, but if the purpose of the cross-examination is to
harass the witness and to ask irrelevant questions, the
purpose of cross-examination is defeated and frustrated.
Such a lengthy cross-examination neither helps the Court
in finding the truth nor in evaluating the evidence, nor
does it help the accused, but damages the defence case and
compels the Court to record a conviction of the accused
persons. In this case too, while arguing the case, learned
senior Counsel Shri J.P. Gupta was unable to justify the
lengthy cross-examination and to get any support from it
in favour of the appellant Govind.
27. The main object of cross-examination is to find out the
truth and the detection of falsehood in human testimony.
It is designed either to destroy or weaken the force of
evidence a witness has already given in person or elicit
something in favour of the party which he has not stated,
or to discredit him by showing from his history and
present demeanour that he is unworthy of credit. It should
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be remembered that cross-examination is a duty, a lawyer
owes to his clients and is not a matter of great personal
glory and fame. It should always be remembered that
justice must not be defeated by improper cross-
examination. A lawyer owes a duty to himself that it is the
most difficult art. However, he may fail in the result, but
fairness is one of the great elements of advocacy. Talents
and genius are not aimed at self-glorification, but rather
to establish truth, to detect falsehood, to uphold right and
justice, and to expose the wrongdoings of a dishonest
witness. It is the most efficacious test to discover the
truth. Cross-examination exposes bias, detects falsehood
and shows the mental and moral condition of the
witnesses and whether a witness is actuated by proper
motive or whether he is actuated by enmity towards his
adversaries. Cross-examination is commonly esteemed
the severest test of an advocate's skill, and perhaps it
demands beyond any other of his duties the exercise of his
ingenuity. There is a great difficulty in conducting cross-
examination with credible skill. It is undoubtedly a great
intellectual effort. Sometimes, cross-examination
assumes unnecessary length; the Court has the power to
control the cross-examination in such cases. (See
Wrottescey on cross-examination of witnesses). The Court
must also ensure that cross-examination is not made a
means of harassment or causing humiliation to the victim
of a crime [See State of Punjab v. Gurmit Singh, 1996 SCC
(Cri) 316 ].”
12. A similar view was taken in Subal Ghorai v. State of
W.B., (2013) 4 SCC 607
13. The only purpose of recalling the witness is to
demonstrate that the petitioner is entitled to compensation
under Section 250 of the Cr.P.C. It was laid down by the Madhya
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Bharat High Court in Lt. Colonel V. Cambier v. Fr. E. Vanni
Archbishop , 1950 SCC OnLine MP 34: AIR 1951 MB 86 that the
cross-examination can relate to relevant facts only. It was
observed at page 88:
6. In his learned commentary, Mr Monir states as follows:
“As in English law, so under the Act, the cross-
examination need not be confined to the matters to
which the witness has testified in his examination-in-
chief, but extends to the whole case. Therefore, if a
party calls a witness to prove the simplest fact
connected with his case, the other party is at liberty not
only to cross-examine him on every issue but also to
put leading questions to establish his own case.”
7. (Vide Monir's Law of Evidence , 3rd Edn. at p. 1107.)
Woodroffe's Law of Evidence also supports this view. [Vide
Woodroffe's Law of Evidence 9th Edn., p. 982). Taylor's Law
of Evidence also contains similar remarks (Vide Taylor's
Law of Evidence lath Edn. Vol. 2, para 1432, p. 913). This
proposition has been fully expounded by their Lordships
of the Calcutta H. Ct. in the case of Amritlal Hazara v.
Emperor, Vide 42 Cal. 957 at p. 1022: (A.I.R. (3) 1916 Cal. 188:
16 Cr. L.J. 497 ). It is dear, therefore, that in the cross-
examination a party can ask questions on every issue to
establish its Base. There is no rule of procedure that
deprives a party of its right to cross-examine a witness in
respect of the whole case on the ground that evidence with
regard to some issues has already been tendered. The
questions, however, must relate to the relevant facts.
14. Section 5 of the Indian Evidence Act provides that the
evidence may be given of the fact in issue or the relevant facts
and no other. Therefore, it is essential to show that the facts
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sought to be proved are in issue or relevant under some section of
the Indian Evidence Act. It was laid down by the Full Bench of
Allahabad High Court in Collector of Gorakhpur v. Palakdhari
Singh , 1889 SCC OnLine All 42: ID (18E88-1890) 6 All 751 that
anything which is not included in the Indian Evidence Act cannot
be admitted. It was observed at page 776:
As to the first question, of course, as I have already
indicated, there being no English common law of evidence
antecedent to the Evidence Act, the only manner in which
these judgments of 1874 could be excluded would be by
reason of that Act itself. In s. Section 3 of that statute
defines what relevant facts are and what are not, and in s.
5 of that enactment it is laid down that “evidence may be
given in any suit or proceeding of the existence or non-
existence of every fact in issue and of such other facts as
are hereinafter declared to be relevant, and of no others.”
So that this last section renders exclusive everything
which is not covered by the purview of some other section
which follows in the statute. Here, the case rests not upon
applying any principle which is to be found in the English
common law of evidence, but upon knowing whether this
statute in s. 5 ever contemplated the alteration of the law
as it stood at the time when the statute was passed. For the
reasons stated by Mr Justice Mitter in his dissenting
judgment in the Full Bench case of Gujju Lall v. Fatteh Lall
[6 C. 171 ], I hold that the law of the land before the passing
of the statute (I of 1872) was that a judgment such as that
of Mr Justice Turner and my brother Brodhurst of 1874
would be admitted in evidence. I do not wish to add
anything to those reasons, because [44] I adopt them fully.
This indeed is the conclusion at which, I understand, the
learned Chief Justice and my brothers Straight and Tyrrell
have also arrived.
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15. It was held by Patna High Court in Mt. Khedia v. Mt.
Turia , 1961 SCC OnLine Pat 105: AIR 1962 Pat 420 that the Judge
cannot admit any evidence because he thinks that such evidence
will help in deciding the matter. It was observed at page 422:
10. It is well settled that the Indian Evidence Act prohibits
the employment of any kind of evidence not specifically
authorised by the Act itself, and, therefore, it is unsound
and not correct to say, as is attempted to be argued here,
that the principle of exclusion adopted by the Indian
Evidence Act shall not be applied to exclude matters which
may be essential for the ascertainment of truth. On this
subject, the observations of Lord Atkin, in Sris Chandra
Nandy v. Rakhalananda, 68 Ind App 34: (AIR 1941 PC 16 ), are
very apposite and may usefully be read here for guidance.
The noble Lord, who delivered the judgment of the Board,
at p. 45 (of Ind App): (at p. 20 of AIR), observed:
“What matters should be given in evidence as essential
for the ascertainment of truth, it is the purpose of the
law of evidence, whether at common law or by statute,
to define. Once a statute is passed that purports to
contain the whole law, it is imperative. It is not open to
any judge to exercise a dispensing power and admit
evidence not admissible by the statute because to him it
appears that the irregular evidence would throw light
upon the issue. The rules of evidence, whether
contained in a statute or not, are the result of long
experience choosing, no doubt, to confine evidence to
particular forms, and, therefore, eliminating others
which it is conceivable might assist in arriving at truth.
But that which has been eliminated has been
considered to be of such doubtful value, as on the
whole, to be more likely to disguise truth than discover
it is therefore discarded for all purposes and in all
circumstances. To allow a judge to introduce it at his
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own discretion would be to destroy the whole object of
the general rule.”
16. No section of the Indian Evidence Act was brought to
the notice of this Court that permits asking the question for
bringing the case under Section 250 of the CrPC; therefore, the
witness could not have been recalled. There is a force in the
submission of Mr Prashant Sen, learned Deputy Advocate General
for the respondent/State, that the application is vague and has
been filed to harass the witness.
17. The petitioner has invoked the extraordinary
jurisdiction of this Court, which is to be exercised sparingly to
prevent the abuse of the process of the Court. It was laid down by
the Hon’ble Supreme Court of India in Didigam Bikshapathi v.
State of A.P. , (2008) 2 SCC 403: (2008) 1 SCC (Cri) 434: 2007 SCC
OnLine SC 1445 that the High Court does not act as a Court of
Appeal or Revision while exercising inherent jurisdiction, but
exercises jurisdiction to do real and substantial justice in
extraordinary situations. It was observed at page 405:
7. “ 6 . … [Section 482] does not confer any new powers on
the High Court. It only saves the inherent power which the
Court possessed before the enactment of the Code. It
envisages three circumstances under which the inherent
jurisdiction may be exercised, namely, ( i ) to give effect to
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an order under the Code, ( ii ) to prevent abuse of the
process of court, and ( iii ) to otherwise secure the ends of
justice. It is neither possible nor desirable to lay down any
inflexible rule which would govern the exercise of
inherent jurisdiction. No legislative enactment dealing
with procedure can provide for all cases that may possibly
arise. Courts, therefore, have inherent powers apart from
express provisions of law which are necessary for the
proper discharge of functions and duties imposed upon
them by law. That is the doctrine which finds expression
in the section that merely recognises and preserves
inherent powers of the High Courts. All courts, whether
civil or criminal, possess, in the absence of any express
provision, as inherent in their constitution, all such
powers as are necessary to do the right and to undo a
wrong in the course of administration of justice on the
principle quando lex aliquid alicui concedit, concedere
videtur et id sine quo res ipsae esse non potest (when the law
gives a person anything, it gives him that without which it
cannot exist). While exercising powers under the section,
the court does not function as a court of appeal or
revision. Inherent jurisdiction under the section, though
wide, has to be exercised sparingly, carefully and with
caution and only when such exercise is justified by the
tests specifically laid down in the section itself. It is to be
exercised ex debito justitiae to do real and substantial
justice for the administration of which alone courts exist.
Authority of the court exists for the advancement of
justice, and if any attempt is made to abuse that authority
so as to produce injustice, the court has the power to
prevent abuse. It would be an abuse of the process of the
court to allow any action which would result in injustice
and prevent the promotion of justice. In exercise of the
powers, the court would be justified to quash any
proceeding if it finds that initiation/continuance of it
amounts to abuse of the process of the court or quashing
of these proceedings would otherwise serve the ends of
justice. When no offence is disclosed by the [report], the
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court may examine the question of fact. When a [report] is
sought to be quashed, it is permissible to look into the
materials to assess what the [report] has alleged and
whether any offence is made out, even if the allegations
are accepted in toto.
7 . In R.P. Kapur v. State of Punjab [AIR 1960 SC 866], this
Court summarised some categories of cases where
inherent power can and should be exercised to quash the
proceedings : (AIR para 6)
( i ) where it manifestly appears that there is a legal bar
against the institution or continuance, e.g. want of
sanction;
( ii ) where the allegations in the first information
report or complaint taken at its face value and accepted
in their entirety do not constitute the offence alleged;
( iii ) where the allegations constitute an offence, but
there is no legal evidence adduced or the evidence
adduced clearly or manifestly fails to prove the charge.
8 . In dealing with the last [category], it is important to
bear in mind the distinction between a case where there is
no legal evidence or where there is evidence which is
clearly inconsistent with the accusations made and a case
where there is legal evidence which, on appreciation, may
or may not support the accusations. When exercising
jurisdiction under Section 482 of the Code, the High Court
would not ordinarily embark upon an enquiry whether the
evidence in question is reliable or not or whether, on a
reasonable appreciation of it, the accusation would not be
sustained. That is the function of the trial Judge. Judicial
process should not be an instrument of oppression or
needless harassment. The court should be circumspect
and judicious in exercising discretion and should take all
relevant facts and circumstances into consideration
before issuing process, lest it would be an instrument in
the hands of a private complainant to unleash vendetta to
harass any person needlessly. At the same time, the
section is not an instrument handed over to an accused to
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short-circuit a prosecution and bring about its sudden
death. The scope of exercise of power under Section 482
of the Code and the categories of cases where the High
Court may exercise its power under it relating to
cognizable offences to prevent abuse of process of any
court or otherwise to secure the ends of justice were set
out in some detail by this Court in State of Haryana v.
Bhajan Lal [1992 Supp (1) SCC 335: 1992 SCC (Cri) 426] . A
note of caution was, however, added that the power
should be exercised sparingly and that too in rarest of rare
cases. The illustrative categories indicated by this Court
are as follows : (SCC pp. 378-79, para 102)
‘ 102 . ( 1 ) Where the allegations made in the first
information report or the complaint, even if they are
taken at their face value and accepted in their entirety,
do not prima facie constitute any offence or make out a
case against the accused.
( 2 ) Where the allegations in the first information
report and other materials, if any, accompanying the
FIR do not disclose a cognizable offence, justifying an
investigation by police officers under Section 156(1) of
the Code except under an order of a Magistrate within
the purview of Section 155(2) of the Code.
( 3 ) Where the uncontroverted allegations made in the
FIR or complaint and the evidence collected in support
of the same do not disclose the commission of any
offence and make out a case against the accused.
( 4 ) Where the allegations in the FIR do not constitute
a cognizable offence but constitute only a non-
cognizable offence, no investigation is permitted by a
police officer without an order of a Magistrate as
contemplated under Section 155(2) of the Code.
( 5 ) Where the allegations made in the FIR or
complaint are so absurd and inherently improbable on
the basis of which no prudent person can ever reach a
just conclusion that there is sufficient ground for
proceeding against the accused.
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( 6 ) Where there is an express legal bar engrafted in
any of the provisions of the Code or the Act concerned
(under which a criminal proceeding is instituted) to
the institution and continuance of the proceedings,
and/or where there is a specific provision in the Code
or the Act concerned, providing efficacious redress for
the grievance of the aggrieved party.
( 7 ) Where a criminal proceeding is manifestly
attended with mala fide and/or where the proceeding
is maliciously instituted with an ulterior motive for
wreaking vengeance on the accused and with a view to
spite him due to a private and personal grudge.’
9 . As noted above, the powers possessed by the High
Court under Section 482 of the Code are very wide, and the
very plenitude of the power requires great caution in its
exercise. The court must be careful to see that its decision
in the exercise of this power is based on sound principles.
The inherent power should not be exercised to stifle a
legitimate prosecution. The High Court, being the highest
court of a State, should normally refrain from giving a
prima facie decision in a case where all the facts are
incomplete and hazy, more so when the evidence has not
been collected and produced before the Court, and the
issues involved, whether factual or legal, are of
magnitude and cannot be seen in their true perspective
without sufficient material. Of course, no hard-and-fast
rule can be laid down in regard to cases in which the High
Court will exercise its extraordinary jurisdiction of
quashing the proceeding at any stage.” [ Ed. : State of
Karnataka v. M. Devendrappa, (2002) 3 SCC 89 , pp. 94-96,
paras 6-9.]
(See State of Orissa v. Saroj Kumar Sahoo [(2005) 13 SCC
540: (2006) 2 SCC (Cri) 272 ] and Minu Kumari v. State of
Bihar [(2006) 4 SCC 359: (2006) 2 SCC (Cri) 310: AIR 2006 SC
1937] .)
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18. The petitioner has stated in the petition that there is
sufficient material on record to claim acquittal, but the petitioner
wants to bring material to claim damages under Section 25o of
the CrPC. Therefore, even if the order is allowed to stand, it will
not amount to the abuse of the process of the Court because the
petitioner can always file a suit for malicious prosecution, and
the present case is not such a case in which the inherent
jurisdiction of the Court is required to be exercised.
19. In view of the above, the present petition fails and is
dismissed.
20. The observations made hereinabove are regarding the
disposal of this petition and will have no bearing, whatsoever, on
the merits of the case.
(Rakesh Kainthla)
Judge
st
21 July, 2026
(Nikita)
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