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2016 Supreme(Del) 3471
IN THE HIGH COURT OF DELHI AT NEW DELHI
VIPIN SANGHI, J.
AJAY GUPTA - Appellant
Versus
STATE THR. C.B.I. - Respondent
CRL.A. 469 of 2003
Decided On : 15-09-2016
For the Appellant : Mr. S.K. Saxena, Mr. Rohit Shankar.
For the Respondents: Ms. Rajdipa Behura, Ms. Garima Singh Yadav.
The main legal point established in the judgment is the wide discretion conferred on the Court by Section 311 of Cr PC, 1973 to summon witnesses for further examination and cross-examination if essential to the just decision of the case.
Headnote:
RECALL OF WITNESSES - CRIMINAL PROCEDURE CODE - Sections 243/311 - Summary of the acts and sections referenced and discussed by the court: The court discussed the application under Sections 243/311 Cr.P.C. for the recall of witnesses PW2-Raj Kumar, PW3-Satpal, and PW5-Inspector CBI R.V.S. Lohmor. The court referred to the first departmental inquiry ordered against the appellant and the subsequent trial under the Prevention of Corruption Act. The court also discussed the appellant's previous applications for leading/recording additional evidence and the dismissal of those applications. The court extensively referred to legal provisions such as Section 311 of Cr PC, 1973 and cited case laws to support its decision to allow the recall of witnesses for further examination and cross-examination.
Fact of the Case:
The appellant sought to recall witnesses PW2, PW3, and PW5 for further examination and cross-examination, citing their earlier statements in the first departmental inquiry that were in his favor. The appellant's counsel did not cross-examine the witnesses on their earlier statements during the trial, and previous applications for additional evidence were dismissed.
Finding of the Court:
The court found that the examination and cross-examination of the witnesses were essential to arrive at a just decision of the case, despite the appellant's previous lapses in seeking their recall. The court allowed the application for the recall of witnesses under Section 311 of Cr PC, 1973.
Issues: The issues revolved around the appellant's failure to cross-examine the witnesses on their earlier statements and the dismissal of previous applications for additional evidence.
Ratio Decidendi: The court's decision was based on the essentiality of the examination and cross-examination of the witnesses for a just decision of the case, as provided under Section 311 of Cr PC, 1973.
Final Decision: The court allowed the application for the recall of witnesses PW2, PW3, and PW5 for further examination and cross-examination by the Trial Court.
VIPIN SANGHI, J.
Crl.M.A. No. 13414/2016
1. Issue notice. Ms. Behura, SPP for CBI, accepts notice.
2. I have heard the submission of learned counsel for the appellant as well as learned counsel for CBI at some length and proceed to dispose of this application.
3. The appellant has preferred this application under Sections 243/311 Cr.P.C. to seek recall of witnesses PW2-Raj Kumar, PW3-Satpal, and PW5-Inspector CBI R.V.S. Lohmor. The background in which the recall of the said witness has been sought may first be noted.
4. The allegation against the appellant was that he demanded and accepted bribe from the complainant PW3-Satpal. A trap had been laid for that purpose by the CBI. PW2 Raj Kumar was the shadow witness and PW5-Inspector RVS Lohmor was the Trap Laying Officer (TLO). As per the case of the prosecution, the appellants/accused had accepted Rs. 5,000/- from the complainant Satpal (PW3) from his right hand and put the amount in his pant pocket. However, when an alarm was raised, he threw the amount and ran away from the spot by jumping the boundary wall. The incident is alleged to be of 08.11.1996.
5. The appellant was departmentally proceeded against on 02.06.1997 (hereinafter referred to as the first departmental inquiry). This departmental inquiry was ordered against the appellant on the ground that he had wrongly made a DD entry No. 3A along with constable Mahesh Chand No. 1413/SD for attending an accident against emergency call marked to him. This alleged false DD entry was allegedly made in relation to the same crime. In the said departmental inquiry, the aforesaid three witnesses, namely, PW2 Raj Kumar-shadow witness, PW3-Satpal, the complainant, and PW5-Inspector RVS Lohmor (TLO) were examined and they all consistently stated that the appellant herein was not the Ajay Gupta who had allegedly demanded and accepted the bribe from the complainant. The TLO had made a statement to the effect, that before he could arrive at the scene of the crime, Ajay Gupta had already escaped. The appellant was found not guilty in the said first departmental proceedings vide order dated 11.03.1999.
6. The aforesaid three witness were then produced by the prosecution at the trial in the case in question under the Prevention of Corruption Act. All these witnesses testified against the appellant/accused, and it is on the basis of their testimonies that the appellant was convicted. Pertinently, the appellant did not confront either of these witnesses with the stand taken by them in the earlier departmental proceedings.
7. The appellant was convicted by the impugned judgment dated 08.07.2003. Thereafter, he preferred the present appeal.
8. In the present appeal, an application was preferred by the appellant under Section 311 read with Sections 391 and 482 Cr.P.C. being Crl.M.A. No. 8205/2005, which was allowed by the Court. The trial court was directed to examine several witnesses (primarily to establish the alibi set up by the appellant) as well as the Incharge, HAP Branch, VI Battalion, DAP. I may observe that the appellant had sought production of additional witness from the Incharge, HAP VI Battalion, DAP, Vikaspuri, Delhi, with the request that an official be deputed who could identify the signatures of Mr. P.K. Loreng the then DCP, VI Battalion, who had signed the exoneration order dated 11.03.1999 whereby the appellant was exonerated in the first departmental inquiry.
9. Additional evidence was accordingly recorded by the trial court and AW3 ASI Jaipal Singh brought the summoned record containing the proceedings of the first departmental inquiry held against the accused. He, inter alia, stated that the departmental inquiry was held against the accused vide order dated 02.06.1997. He exhibited the exoneration order dated 11.03.1999 passed in the said departmental proceedings by Shri P.K. Loreng, the then DCP, VI Battalion, Delhi Police. Incidentally, in the file brought by him, the statements of PW2-Raj Kumar, PW3-Satpal and PW5 Inspect
