The accused cannot demand the recall of a witness for cross-examination if the counsel deliberately chooses not to cross-examine the witness.

MUKTA GUPTA, J. (ORAL)

1. Aggrieved by the order dated 11th April, 2016 dismissing the application under Section 311 Cr.P.C. for cross-examination of PW-36 Shri N.V.N. Krishnan and PW-35 Shri A.K.Seth filed by the petitioners herein the petitioners prefer the present petition. The reasoned impugned order of the learned Trial Court is as under:

“By this order, this Court shall dispose of an application moved on behalf of Accused 4, 7, 8, 9, 10 and 11 for recalling of witnesses U/S 311 Cr.P.C. for cross-examination of PW 36 Sh. N.V.N. Krishnan and PW 35 Shri A.K. Seth.

Ld. counsel Sh. R.K. Kohli has moved this application without affidavit of either of the parties or the counsel. Admittedly, there are two counsels moved this application in this case and definitely, if there are two counsels one could go to Hon’ble Supreme Court and other definitely could attend this court proceedings. Moreover, nothing has been explained what was the reasons for leaving the Court on 06.04.2016. Therefore, it is an admitted fact that on 06.04.2016 Ld. Defence counsel did not intentionally preferred to cross-examine PW-35. It is not explained in the application for non appearance of the counsel on 07.04.2016. It is nothing explained on 08.04.2016 at what time the case came up before the Hon’ble Supreme Court and for what reason he did not appear even after post lunch session.

Ld. PP for CBI submits that he does not want to file any reply to the application filed U/S 311 Cr.P.C. However, he strongly opposed the application as Ld. Defence counsel in moving this application just to delay the proceedings of the case as ample opportunities have been given to the accused persons to cross-examine the witnesses. It is further submitted that when the PWs were being examined Ld. Defence Counsel Shri R.K. Kohli and Ms. Meenakshi Gautam were present before the Court and they preferred not to examine the witnesses as they left the court even without taking the formal permission of the court and even court asked them to wait for cross-examination of the witnesses, which fact is writ large from the order-sheet dated 06.04.2016. It is further submitted that the case is pending before the Court of Law for the last seventeen years and if such vexatious applications are allowed there will be no end to proceedings and it will frustrate the very purpose of ends of justice.

It is further submitted that even after lunch, the Court kept the matter and adjourned only after lunch. I have heard both the parties and have gone through the court record. The order-sheet dated 06.04.2016 read as under:

“... In the morning when the application seeking adjournment by the accused persons was disposed of then without permission the Ld. Counsel Ms. Meenakshi Gautam & R.K. Kohli left the court though evidence was going on and the court again and again requested to stay and assist the court but they left the court despite repeated requests and without permission of the court.

It is apparent that upon application seeking adjournment, it is not the prerogative of the counsel that the court has to certainly grant the adjournment. PW-35 has been examined and this Court has asked each of the accused person to call their respective counsels.

However, accused persons submits that their counsel are not available and they do not want to cross-examine the witnesses. The court again asked the accused persons that it can wait for their counsels and they can cross examine the witnesses after lunch. However, accused persons submitted that their respective counsels are not available after lunch. However, now when the witnesses has signed the statement and left the court now Ms. Meenakshi Gautam appeared and has moved an application for supplying copy of evidence. This court has no hesitation to supply the copy of the evidence to the counsel but when a counsel comes for the relief the court then it is his/her duty that he/she should show respect to the Court. Let copy of the evidence recorded today