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Hakumat Rai Nigam Vs. State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtDelhi High Court
Decided On
Case NumberCriminal Revision Appeal No. 348 of 1972
Judge
Reported inILR1974Delhi271
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 540
AppellantHakumat Rai Nigam
RespondentState
Advocates: S.S. Palta, Adv
Excerpt:
.....when the court considers it expedient to do so for the just decision of the case. - - the failure on the part of the prosecution to supply copies of the said documents, the petitioner alleges, had resulted in great prejudice to him and that he was deprived of proper opportunity to crossexamine all the witnesses on the basis of those documents. (15) a bare perusal of section 540, criminal procedure code .reveals that a witness can be recalled and re-examined if the court is satisfied that his further evidence was essential for the just decision of the case......5were examined on5th july, 1972. despite opportunity having been give the said vwitnesses were not crossexamined by the petitioners counsed. shri h. r. bhardwaj who appeared for the petilioner on the said date. (3) p.w. 6 to 8 were examined on 18th august, 1972. from the record it appears that the petitioner on the said date put in an application staling that shri h. r. bhardwaj had appeared for him only on two hearings and that froma nerusal of the evidence already recorded the petitioner was of the view that his said counsel had not done justice to the case. accordingly, he wanted to engaged another counsel, and prayed that reasonable time be given for that purpose and that the witnesses present for that day may be examined on some other date. (4) the said application was opposed by.....
Judgment:

Prithvi Raj, J.

(1) The petitioner is being tried by shri Jagdish Chander, Special Judge, Delhi, for an offence under section 5(l)(d) of the Prevention of Corruption Act, 1947, punishable under section 5(2) of the said Act, on the allegation that he on 3rd May, 1971, while employed as Superintendent in National Small Industries Corporation Limited, Okhla, New Delhi, as a public servant, by corrupt or by illegal means or otherwise abusing his position as a public servant obtained Rs. 200.00 from Shri Ranbir Singh son of Amir Chand, as illegal gratification. He is also being tried for an offence punishable under section 161 Indian Penal Code . on the ground that he on the 3rd May, 1971, accepted the sum of Rs. 200.00 from Ranbir Singh as gratification other than legal remuneration as a motive or reward for showing him favor in getting his machine case passed in the meeting to enable him to purchase gear shaper machine on hire purchase syst

(2) The Special Judge framed the above charges against the petitioner on the 25th February, 1972. The charges were read over and explained to the petitier who claimed to L;: tried. The prosecution has so far examined 8 witness. Public Witness 1 to Public Witness 3 were examined on 4th July, 1972. The petitioner o-i. that cay v.as represented by his counsel, Shri H. R. Bhardwaj who cross examined the said witnesses for the petitioner, Public Witness s. 4 and 5were examined on5th July, 1972. Despite opportunity having been give the said vwitnesses were not crossexamined by the petitioners counsed. Shri H. R. Bhardwaj who appeared for the petilioner on the said date.

(3) P.W. 6 to 8 were examined on 18th August, 1972. From the record it appears that the petitioner on the said date put in an application staling that Shri H. R. Bhardwaj had appeared for him only on two hearings and that froma nerusal of the evidence already recorded the petitioner was of the view that his said counsel had not done justice to the case. Accordingly, he wanted to engaged another counsel, and prayed that reasonable time be given for that purpose and that the witnesses present for that day may be examined on some other date.

(4) The said application was opposed by the prosecution on the ground that the petitioner ought to have engaged a new counsel prior to the date of hearing. The prosecution further contended that out of the three witnesses present on that day, two were formal witnesses and the third was the investigation officer who was not an eye-witness to the passing of bribe. The prevention also alleged ihat on an earlier hearing the case had to be adjourned as the petitioner had sent a medical certificate and the said three witnesses had to go back without having been examined.

(5) The Special Judge agreeing with the objection of the prosecution, rejected the application of the petitioner and proceeded to record the statements of the witnesses. It was, however, observed by the Special Judge that the invcstigating officer, Bhirn Singh, being an important witness his cross-examination would be deferred. The Special Judge accordingly examined C. K. Karunakaran. Public Witness 6, S.K.Sur, P.W.7 and Inspector Bhim Singh, Public Witness 8.Opportunity was given to the petitioner to cross-examine Public Witness s.6 and 7 but he did not crossexamine the said witnesses while the cross-examination of Public Witness 8 was deferred. The case was adjourned to 24th August, 1972.

(6) The petitioner on 21st August, 1972, moved an application through his counsel, Shri S. S. Palta, Advocate, staling that the documents detailed in para 5 of the said anolication contained in the case file of M/s. Sehgal Cycle Works, Ghaziabad, on which documents the prosecution relied during the trial of the case, and reference to which had been made in the statement of S. K. Sur, Public Witness 7, had not been supplied to him. The failure on the part of the prosecution to supply copies of the said documents, the petitioner alleges, had resulted in great prejudice to him and that he was deprived of proper opportunity to crossexamine all the witnesses on the basis of those documents. It was accordingly prayed that copies of the said documents be supplied to him before the next date of hearing, viz., 24th August, 1972, and that all the prosecution witnesses examined till then be re-called for further cross-examination as they could not be adequately cross-examined for lack of copies of documents on which the prosecution had relied.

(7) The Court ordered that the application be put up on the 24th August, 1972, the date fixed in the case. On 24th August, 1972, the Special Judge after hearing the parties, ordered that the complainant Ranbir Singh, Public Witness I, C. K. Karunakaran, Public Witness 6 and Shri S. K. Sur, P.W.7 be recalled for further cross-examination on the 13th September, 1972, and that the copies mentioned in para 5 of the application dated the 21st August, 1972, be supplied to the petitioner on the 28th August, 1972. The Court, however, declined to recall the Punch witnesses for further cross-examination as they did not appear to have any connection with the documents, copies of which were sought by the petitioner.

(8) The complainants who was recalied was cross-examined at length by the learned counsel for the petitioner. The cross-examination related to the documents, copies whereof were sought by the petitioner in his application dated the 21st August, 1972. The learned counsel for the petitioner, however, wanted to further cross-examine the complainant in regard to other matters Oil which the complainant had already been examined. This was opposed by the prosecution on the ground that the complainant was re-called with a view to afford an opportunity to the petitioner to cross-examine him in respect of the documents which were supplied to the petitioner at a subsequent stage of the trial. The parties counsel sought adjouinment to adress arguments as to whether the petitioner had a right to cross-examine the witness recalled on all aspects touching the merits of the case or whether he was to be confined to cross-examine the witness in respect of the documents, copies whereof were supplied to the petitioner, subsequently on his request through his application dated the 21st August, 1972.

(9) The Special Judge by his order dated the 20th September, 1972, declined to grant permission to the petitioner to cross-examine the complainant who had been re-called regarding matters other than pertaining to the documents, referred to above, on the ground that it would be unreasonable and unjust to allow the petitioner the right to further cross-examine the withness beyond matters relating to the documents of the machinery case referred to by the complainant as the petitioner had already availed of an opportunity to cross-examine the complainant on the other aspects. In the result the prayer of the petitioner for further cross-examining the complainant relating to matters other than the documents in question, was dis-allowed.

(10) The petitioner feeling aggrieved by the said has come up in revision before this Court.

(11) The petitioner has also assailed the order of the Special Judge dated the 24th August, 1972, whereby the Court declined to recall Panch witnesses on the ground that their evidence did not concern the documents, copies of which were supplied to the petitioner on his application dated the 21st August, 1972.

(12) Shri S. S. Palta, counsel for the petitioner, vehemently contended that according to section 251-A, Criminal Procedure Code . in any case instituted on a police report, when the accused appeared or was brought before the Magistrate at the commencement of the trial, the Magistrate shall satisfy himself that the documents referred to in section 173, Criminal Procedure Code . had been furnished to the accused and if he finds that the accused had not been furnished with such documents or any of them, he shall cause them to be so furnished. That being the mandatory provision of law, it was urged, it was the duty of the Special Judge to ensure that all documents referred to in section 173, Criminal Procedure Code . were furnished to the petitioner. Since in the instant case, it was submitted, the documents on which the prosecution relied, had not been supplied to the petitioner, he was prejudiced in his defense. Accordingly Shri Palta submitted, the petitioner was within his right to cross-examine the complainant and the other two witnesses who had been ordered to be recalled, on all matters pertaining to the prosecution allegations against the petitioner.

(13) The above grievance of the learned counsel for the petitioner is unfounded. The documents in question were not relied upon by the prosecution at the time the police made report to the Court under section 251-A, Criminal Procedure Code . The documents were referred to during the examination of Shri S. K. Sur, P. W. 7. The copies of the said documents, however, had been supplied to the petitioner though on his request. But all the same now that the petitioner is in possession of documents and has availed of an opportunity to cross-examine the complainant with respect to the said documents, the petitioner cannot in fairness say that he has been prejudiced in his defense.

(14) Section 540, Criminal Procedure Code . empowers any Court to re-call and reexamine any person already examined if his evidence appears to it essential to the just decision of the case. There can be no manner of doubt that the documents, copies whereof were supplied to the petitioner, existed on the file of Sehgal Cycle Works Ghaziabad which file was brought by Public Witness 7, S. K. Sur, on the basis of which file, he made statement in the Court. There is also no manner of doubt that the documents on the basis of which the statement was made by the said witness, were not supplied to the petitioner. The documents, however, were supplied to the petitioner under orders of the special Judge. For this omission, the Court rightly thought it fit to recall P.W.I and Public Witness 7 as also Public Witness 6 for further cross-examination.

(15) A bare perusal of section 540, Criminal Procedure Code . reveals that a witness can be recalled and re-examined if the Court is satisfied that his further evidence was essential for the just decision of the case. The power of the Court to re-call the witness under section 540, Criminal Procedure Code . is a discretionery power to be exercised in the interest of justice where essential evidence is required to be brought on the record and not that the witnesses should be brought on the record as the prosecution or the defense wanted to fill up the gaps in its case or bring on the record a revised version of their case.

(16) Section 540 does not entitle a party to invoke the said provision in asking a Court to recall a witness at the party's instance with a view to enable the party to improve upon its case by introducing new matters. The section empowers the Court to recall a witness in the interest of justice when the Court considers it expedient to do so for the just decision of the case.

(17) In the instant case the only contention was that in the order dated the 24th August, 1972 no limitations were imposed as to on which matters the recalled witness shall be cross-examined. That being so, it was urged that the petitioner had unfettered right to cross-examine a recalled witness on all aspects of the case. I am afraid, it is not possible to sustain this contention. It is evident that the witness who was ordered to be re-called had been cross-examined by the petitioner at length in respect of all matters pertaining to his defense except in respect of the documents, copies of which were supplied to the petitioner after the statement of the said witness had been recorded. The witness had been re-called on the request of the petitioner, Shri Palta, learned counsel for the petitioner, had fully cross-examined the witness in respect of the documents in question . In the circumstances, the petitioner had no right to further cross-examine the witness in respect of other matters on which the witnesses had already been examined in order to fill up the lacunae which according to the petitioner existed because of his earlier counsel. Shri H. R. Bhardwaj, having not cross-examined the witnesses to the satisfaction of the petitioner.

(18) The Special Judge was right in not recalling the Panch witnesses as tney had nothing to do with the documents supplied subsequently to the petitioner.

(19) For the reasons stated above, the petition fails and is hereby dismissed. The record of the case be sent to the Special Judge forthwith to proceed further in the matter.


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