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2020 Supreme(Del) 1246
IN THE HIGH COURT OF DELHI AT NEW DELHI
Manoj Kumar Ohri, J.
In Matter Of Rachna Malaviya - Appellant
Versus
State, NCT Of Delhi & Anr. - Respondent
Criminal Miscellaneous Case No. 89 of 2020; Criminal Miscellaneous Appeal No. 390 of 2020
Decided On : 29-01-2020
M.N. Dudeja, Advocate, Aditya Mishra, Advocate, M.P. Singh, Advocate, Vinod K Singh, Advocate
The power under Section 311 Cr.P.C. should be exercised only for strong and valid reasons, with caution and circumspection, and should not be used if it is an abuse of the process of law.
Headnote:
ABUSE OF PROCESS - Criminal Revision Petition - Sections 498-A/323 IPC, Sections 3 & 4 of Dowry Prohibition Act - [Section 311 Cr.P.C.] - [Summary of Acts and Sections: Section 311 Cr.P.C.] - The court discussed the scope and power of the court under Section 311 Cr.P.C. and emphasized that the power should be exercised only for strong and valid reasons, with great caution and circumspection. It should not be exercised if the application is an abuse of the process of law. The court also highlighted that summoning of witnesses at a belated stage should not be allowed if it would cause prejudice to the accused. The court found that the present case was a gross abuse of the process of the court by the accused, and accordingly set aside the impugned order.
Fact of the Case:
The petitioner/complainant challenged the order allowing the recall of prosecution witnesses by the accused. The court traced back the history of the case, noting the conduct of the accused and the various adjournments and delays in the trial proceedings.
Finding of the Court:
The court found that the accused's conduct amounted to a gross abuse of the process of the court, and set aside the impugned order allowing the recall of prosecution witnesses.
Issues: The issues revolved around the conduct of the accused, the abuse of the process of the court, and the power of the court under Section 311 Cr.P.C.
Ratio Decidendi: The court emphasized that the power under Section 311 Cr.P.C. should be exercised only for strong and valid reasons, with caution and circumspection, and should not be used if it is an abuse of the process of law.
Final Decision: The impugned order allowing the recall of prosecution witnesses was set aside, and the order dismissing the accused's application under Section 311 Cr.P.C. was upheld.
JUDGMENT
Manoj Kumar Ohri, J. - The present proceedings have been instituted by the petitioner/complainant, assailing the order dated 18.12.2019 passed by District & Sessions Judge in C.R.No.317/2019 arising out of FIR No.520/1998 registered under Sections 498-A/323 IPC and Sections 3 & 4 of Dowry Prohibition Act at Police Station Trilokpuri, whereby the application of respondent no. 2/accused to recall the prosecution witnesses was partially allowed.
2. To decide the present petition, I deem it necessary to trace back the history of the present case which relate to a FIR that was registered in the year 1998.
3. The order framing charge against the accused/respondent no.2 was passed on 11.08.2006. During trial, the complainant''s examination-inchief was concluded, but for one reason or the other, her crossexamination was not concluded by respondent no.2/accused. Eventually, the trial court on 29.07.2017, while noting that the cross-examination of the petitioner/complainant was pending since 15.10.2016, closed the opportunity of respondent no.2/accused for further cross-examination. The aforesaid order was passed in the presence of respondent no.2/accused.
4. Subsequently, other prosecution witnesses were examined but respondent no.2/accused failed to cross-examine each one of them despite number of opportunities granted by the Trial Court. While closing the opportunity of respondent no.2/accused to cross-examine PW-3/Ashwini Gulati, the Trial Court in its order dated 20.09.2017, observed that the witness was examined on 28.02.2012 but not crossexamined till that date by respondent no.2/accused.
5. In between, the respondent no.2/accused filed applications through his counsel seeking exemption from his personal appearance on various dates. On all such dates, he was represented through his counsel.
6. On 07.12.2017, the prosecution evidence was closed. Respondent no.2/accused was summoned to appear on 20.12.2017 for recording of his statement under Section 313 Cr.P.C.
7. On 20.12.2017, respondent no.2/accused consented that his statement be recorded in absence of his counsel. The statement of respondent no.2/accused was partially recorded. On the next date, i.e., on 01.02.2018, the Trial Court offered legal aid to respondent no.2/accused, which he declined and after recording no objection, his statement was further partially recorded. On 22.02.2018, respondent no.2/accused informed that he had engaged a counsel but noting the absence of the counsel, the Trial Court again offered legal aid to respondent no.2/accused, which was declined. The trial court recorded partial statement of respondent no.2/accused and the case was re-notified. On 24.03.2018, respondent no.2/accused was present along with his counsel and his remaining statement under Section 313 Cr.P.C. was recorded. At request of the respondent no.2/accused , the matter was renotified for 28.04.2018 to enable him to lead defence evidence.
8. On 28.04.2018, respondent no.2/accused again sought an adjournment to engage a new counsel. The matter was adjourned for 19.05.2018. Respondent no.2/accused appeared along with his counsel but since no DW was present, the case was re-notified. On 07.07.2018, the counsel for the accused sought adjournment, and last opportunity was granted to him to lead defence evidence. On 11.07.2018, once again, learned counsel for respondent no.2/accused prayed for an adjournment on the ground that respondent no.2/accused was still trying to find witnesses. The trial court, noting that sufficient opportunity was already granted, closed the opportunity to lead defence evidence. The matter was re-notified for final arguments.
9. On 04.08.2018, respondent no.2/accused sought adjournment on account of non-availability of his counsel. The Trial Court was constrained to observe that respondent no.2/accused , who was a CEO of Promodom Communications Ltd., was financially sound but was adopting delaying tactics. A cost of Rs.5,000/- was imposed and the matte
