Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Del) 3670

IN THE HIGH COURT OF DELHI AT NEW DELHI
Swarana Kanta Sharma, J.
State of NCT of Delhi – Appellant
Versus
Mohd. Iqbal Gazi & Ors. – Respondents
Cr.M.C. 5211 of 2023 & Cr.M.A. 21435 of 2023
Decided On : 04-09-2023

Advocates appeared:
Mr. Sanjay Lao, Standing Counsel, for the State with SI Rahul, PS Seelampur.
Mr. Laksh Khanna, APP for the State, Mr. Abhinav Kumar Arya and Mr. Priyam Agrawal, Advocates, for the Petitioner.
Mr. Deepak Kumar and Ms. Dimple Aggarwal, Advocates, for the Respondent-4.
Mr. M.N. Dudeja and Mr. Aditya Mishra, Advocates, for the Respondent-2.

The application of Section 311 of Cr.P.C. in summoning and examining witnesses to prove relevant conduct of the accused, and the importance of ensuring crucial evidence is brought before the Court to prevent a miscarriage of justice.

Headnote:
Section 311 of Cr.P.C - Summoning of Witnesses - Maharashtra Control of Organised Crime Act, 1999 - Sections 3(2) and 3(4) - 2(1)(d) and 2(1)(e) of MCOCA
Fact of the Case:

The petitioner/State filed a petition seeking to set aside an order passed by the Trial Court dismissing the application under Section 311 of Cr.P.C. for summoning and examining six witnesses in a case related to offences under MCOCA. The witnesses were sought to prove the conduct of the accused of threatening protected witnesses from jail, which was relevant for deciding the case.
Finding of the Court:

The Court found that the conduct of the accused of threatening protected witnesses from jail was a relevant factor for deciding the case. Dismissing the petition would result in a miscarriage of justice as crucial evidence would not be brought before the Court due to technicalities of law.
Issues: The issues revolved around the relevance of summoning and examining witnesses to prove the conduct of the accused of threatening protected witnesses from jail, and the application of Section 311 of Cr.P.C. in the context of the case.
Ratio Decidendi: The Court held that the conduct of the accused of threatening protected witnesses from jail was a relevant factor for deciding the case, and dismissing the petition would result in a miscarriage of justice. The Court allowed the petition subject to certain conditions.
Final Decision: The petition was allowed, and the witnesses sought to be summoned were to be examined within one month, with the statements and documents provided to the defense counsel at least fifteen days prior to the examination.

JUDGMENT

Swarana Kanta Sharma, J. The present petition under Section 482 of the Code of Criminal Procedure, 1973 (`Cr.P.C') has been filed on behalf of petitioner/State seeking setting aside a impugned order dated 07.03.2023 passed by learned Sessions Judge-03, North-East District, Karkardooma Courts, New Delhi (`Trial Court') in Sessions Case no. 45052/2015 arising out of FIR bearing no. 351/2013 registered at Police Station Seelampur, Delhi for offence punishable under Sections 3(2) and 3(4) of Maharashtra Control of Organised Crime Act, 1999 (`MCOCA') vide which the learned Trial Court had dismissed application under Section 311 of Cr.P.C. preferred on behalf of the State for summoning and examining six witnesses.

2. Briefly stated, the facts of the present case are that the present FIR was registered on the basis of an application filed under Section 9 of MCOCA, following a complaint by Mohd. Mobin against the respondents. The complainant had alleged that the respondents had not only committed serious offences but they were also part of an organised crime syndicate, engaged in ongoing unlawful activities. Further, multiple FIRs had been registered against the respondents, with Mohd. Mobin being a victim in FIR no. 228/2012. On 29.07.2013, the Court of Special Judge, MCOCA, Karkardooma, Delhi, had allowed the application, leading to the registration of present FIR bearing no. 351/2013. Thereafter, on 18.04.2015, chargesheet was filed against the accused Mohd. Iqbal Gazi, with a supplementary chargesheet for accused Mohd. Jamal being filed on 26.08.2016 before the learned Trial Court. Charges were framed against respondents for offences punishable under Sections 3(1), 3(2), 3(3), 3(4) and 3(5) of MCOCA.

3. On 27.02.2023, the petitioner/State had filed an application under Section 311 of Cr.P.C. in the present case for summoning and examining six witnesses being Nodal Officers to prove CDR, CAFF, and location ID chart of mobile nos. ***591 and ***796, one Md. Furkan, one Md. Rizwan, Ahlmad of Court of learned Metropolitan Magistrate, Karkardooma Courts, Delhi and SI Shailender, IO of case FIR No. 12/2015, P.S. Seelampur. A list of witnesses for summoning and examination was also annexed along with the said application which is as under:

1. Nodal Officer - Aircel with CDR, CAF & Location chart with respect to Mobile No.***591 (pertaining to Kamaluddin @Kamal @Bilal) for the from 01.12.2014 to 03.02.2015.

2. Nodal Officer - Vodafone with CDR, CAF & Location Chart with respect to Mobile No.***791 (pertaining to CRL.M.C.-5211/2023 12 Jamal @Ranjha) for the period from 20.12.2014 to 12.02.2015.

3. Md. Fukran s/o Faimuddin to depose about his statement under Section 161 Cr.P.C. in case FIR No.12/15 PS Seelampur.

4. Md. Rizwan s/o Faimuddin to depose about his statement under Section 161 Cr.P.C. in case FIR No.12/15 PS Seelampur.

5. Ahlmad of Court of Sh. Vipul Sandwar learned Metropolitan Magistrate, Karkardooma, Delhi with original file containing statements under Section 161 Cr.P.C. of Md. Fukran and Md. Rizwan, and phone call details of accused Kamaluddin and Md. Jamal with protected witness in the present case.

6. SI Shailender, IO of case FIR No. 12/15 PS Seelampur to depose the fact relevant to the present case.

4. However, vide impugned order dated 07.03.2023, the learned Trial Court had dismissed the application filed by the State under Section 311 of Cr.P.C. and had passed the following order:

"An application u/s 311 Cr. PC was filed by Id. SPP for summoning and examining 6 witnesses, as per list attached with the application. Reply to this application filed by Sh. Piyush Singhal, Id. counsel for accused Kamaluddin @ Kamal and submissions heard.

As per contentions of Id. Addl. PP, accused Kamal had made some threatening calls to one protected witness, while being lodged in the jail itself. According to Id. Addl. PP, such threatening calls were made prior to filing of chargesheet in this case, but after registration of the FIR. H