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* IN THE HIGH COURT OF DELHI AT NEW DELHI

Reserved on: 23^rd May, 2017

Pronounced on:03^rd July, 2017

+

WP(Crl.) 1350/2017 and Crl. M.A. 7450/2017

VIJAY KUMAR

..... PETITIONER

Through:

Mr. Siddharth Agarwal, Mr.

Raj Mohan Gupta and Mr.

Nikhil Pillai, Advocates

Versus

STATE (GOVT. OF NCT OF DELHI) .... RESPONDENT

Through:

Mr. Avi Singh, ASC and Ms.

Anya Singh, Advocate with

SI

Sunder

Kumar,

PS

Ambedkar Nagar

CORAM:

HON'BLE MR. JUSTICE R.K.GAUBA

JUDGMENT

1.

The import, scope and width of the discretion vested in the

Judge presiding over a criminal trial to permit the cross-

examination of a witness to be deferred until another witness has

been examined is the issue of general importance posed in these

proceedings.

2.

The petition has been presented invoking the jurisdiction of

this court under Articles 226 and 227 of the Constitution of India

read with Section 482 of the Code of Criminal Procedure, 1973 (Cr.

PC) seeking to assail the view taken by the Sessions Judge (South),

by order dated 13.04.2017, in the course of trial of sessions case

2017:DHC:3241

against the petitioner on charge for offences punishable under

Sections 302, 307 and 34 of Indian Penal Code, 1860 (IPC), arising

out of a report under Section 173 Cr. PC, submitted on conclusion

of investigation into first information report (FIR) no.375/16 of

police station Ambedkar Nagar, throwing up questions that call for

application of Section 231(2) Cr. PC.

3.

The FIR was initially registered for the offence under

Sections 307 / 34 IPC. The charge-sheet would show that the

victim (Sanjay @ Arvind) succumbed to the stab injuries as a result

of which the charge for the offence under Section 302 IPC was also

added. Though the contentions raised here relate to a prayer made

in the course of trial before the court of Sessions, the view taken

respecting the discretion vested in the trial judge by Section 231(2)

Cr.P.C. would also apply to trial of a warrant case instituted on a

police report in the court of Magistrate in as much as the proviso to

sub-section (3) of Section 242 Cr. PC confers similar discretion on

the said court as well.

4.

Though the petition raises a pure question of law, it is proper

to consider it against such background facts as are undisputed. The

case against the petitioner, and other persons facing the trial as co-

accused with him, is founded primarily on the allegations made in

the FIR registered on 27.06.2016 regarding an incident that statedly

occurred at 4.30 p.m. on the said day. The first informant Imran

told the police in the FIR that he had gone visiting a public park in

Madangir area in the company of his friend Sanjay @ Arvind (the

victim) where the appellant had arranged a bhandara. Imran and

2017:DHC:3241

Sanjay @ Arvind wanted to partake the food being offered in the

bhandara but the petitioner told him that the same could not be

served to them as it was meant for guests. A quarrel ensued in the

course of which Sanjay @ Arvind gave a slap to the petitioner who,

in turn, allegedly became abusive and exhorted his nephews Deepak

and Rohit to commit physical assault. It is alleged that pursuant to

such provocation, and exhortation, Rohit picked up a knife and used

it for stabbing Sanjay @ Arvind in his abdomen with Deepak,

statedly at the instance of the petitioner, assisting by holding on to

him. It was further alleged that the petitioner had also attacked

Imran (the first informant) with knife inflicting injury on his thigh.

It is stated that the investigation brought out that the incident was

seen by two other persons, they being Abhimanyu and Shivraj

Naydu @ Sullie. It also needs to be mentioned that besides Imran,

Abhimanyu and Shivraj Naydu, the prosecution also rests its case,

inter alia, on the evidence of at least three other public witnesses,

they being Joginder Kumar, Vinay and Bhush