The power under S.311 Cr.P.C. should be exercised to ensure a just decision and the best available evidence should be brought before the Court. Respect for time limits set by higher courts is crucial.

JUDGMENT

Dinesh Kumar Sharma, J. (Oral)

Crl.M.A.1176/2023 (exemption)

Exemption allowed subject to all just exceptions.

CRL.M.C.10/2021

1. Present petition has been filed challenging the order dated 23.10.2020, passed in CC no. 362/2019 whereby, the learned Spl. Judge (PC Act), CBI, Rouse Avenue Courts, New Delhi has dismissed the plea of one Mr.C. Edmonds Allen and CBI for calling this witness for the purpose of examination.

2. Learned Spl. Judge (PC Act), CBI while dismissing the plea(s) took into account the conduct of the witness and the fact that sufficient opportunities had already been given to the CBI to produce this witness as well. Learned Spl. Judge (PC Act), CBI inter alia was of the view that the witness was intentionally playing hide and seek with the Court and cannot be permitted to misuse the process of the law. The CBI has challenged the impugned order dated 23.10.2022 primarily on the grounds that Mr. C. Edmonds Allen is a material witness and his testimony is necessary for adjudication of the dispute.

3. In the petition, CBI has stated that the learned Trial Court has failed to appreciate that the witness is very crucial for the decision of the case which is related to forgery and corruption in a cases where large public interests are involved. CBI stated that the jurisdiction under Section 311 Cr.P.C. was not properly exercised by the learned Spl. Judge (PC Act), CBI.

4. The Hon'ble Supreme Court vide order dated 04.01.2018 in SLP Crl. No(s) 9251-9252/2017, titled as Jagdish Tytler vs. CBI through Superintendent of Police, directed the Trial Court to complete the trial within the outer limit of one year.

5. Pursuant to the direction of the Supreme Court, the learned Trial Court, vide order dated 26.11.2018 noted that the summons were duly executed and served upon PW C. Edmonds Allen but he did not appear before the court. Learned Trial Court noted that PW C. Edmonds Allen had also been served earlier and sufficient time was given to CBI for the service of summons of PW C. Edmonds Allen in accordance with the law. In the order dated 26.11.2018, it was also specifically noted that vide order dated 24.07.2018, it was made clear that in view of the directions of the Supreme Court to complete the trial within one year, no further opportunity would be granted to CBI for summoning PW C. Edmonds Allen. Therefore, Learned Trial Court on 26.11.2018 inter alia held that in pursuance to the non- appearance of the witnesses no further opportunity can be granted to the CBI and CBI is not in a position to examine the witnesses namely PWs C. Edmonds Allen and Gang Yong. However, the learned Trial Court gave an opportunity to examine IO/Dy. S.P. Vipin Kumar. Accordingly, PW-26 IO/Dy. S.P. Vipin Kumar was examined on 10.01.2019 and PE was closed. Thereafter, the statements of the accused persons were recorded. The defence evidence of the accused persons was also recorded and finally, DE was closed on 26.11.2019. The matter was posted for final arguments on 12.12.2019.On the said date the matter was directed to be listed for final arguments on 17th, 18th, 19th February 2020 but thereafter the matter kept on adjourning for one reason or the other. It is pertinent to note that on 12.12.2019, Ms. Mayuri Shukla, advocate appeared for PW C. Edmonds Allen.

6. Perusal of the order sheets also indicatesthat the hearing of the application of PW C. Edmonds Allen was postponed and the matter was taken up by the learned Trial Court on 29.06.2020 and thereafter, on 23.10.2020, taking into account the entire proceedings, the request of PW C. Edmonds Allen and the CBI was declined.

7. Aggrieved of this, CBI invoked the jurisdiction of this Court and while the matter rested thus, a miscellaneous application bearing no. IA 145448/2021 was filed by the CBI before Supreme Court seeking an extension of time to conclude the trial. Hon'ble Supreme Court in SLP Crl. No(s) 9251-9252/2017 vide order dated 14.10.2022 allowed the application of C