Abdul Latif vs State of Punjab, CBI

Amar Dutt, J.

Abdul Latif has filed the present revision to challenge the order dated 9.8.2003 passed by the Sessions Judge (Designated Judge under the Anti Hijacking Act), Patiala rejecting an application under Sections 311, 279 and 309 Cr.P.C.

The petitioner is being tried in C.B.I. Case No. RC1 (S)1/2000/SIVIV/ND dated 11.1.2000 registered under Sections 302, 307, 323, 326, 342, 363 and 506 I.P.C., Sections 4 and 5 of Anti Hijacking Act, 1982 and Sections 25 and 27 of the Arms Act. Challan in this case was presented before the Sessions Judge, Patiala on 20.7.2000. After completion of the formalities and hearing arguments on the question of charge, the charges were framed on 28.4.2001. Statements of about 20 witnesses had been recorded before 23.4.2002 when the Sessions Judge, Patiala had passed the orders to the effect that the Court would be held in jail from 22.5.2002 onwards. This change of the venue of the trial, which was done in view of the notification issued by the State of Punjab under Section 268 Cr.P.C. and the direction of Mrs. Justice Bakhshish Kaur, who was then Administrative Judge of the Patiala Sessions Division, was resented by the accused and their counsel. The same was challenged if Civil Writ Petition No. 10798 of 2002 titled "Abdul Latif and others v. C.B.I. etc." before this Court. In this writ petition, the following relief was sought for :

a) writ of certiorari or any other appropriate writ, order or direction for quashing the order passed by learned Sessions Judge, Designated Court, Camp at Central Jail, Patiala dated 29.5.2002 vide which the application moved on behalf of the petitioners has been dismissed and it has been decided to hold the trial of the case in Central Jail, Patiala for a continuous period of one week in a month :

With a further prayer that this Hon''ble Court may also direct the concerned Court to recall the witnesses examined on 22, 23 May, 2002 and 27 to 31 May, 2002 which are total numbering around ten;

With a further prayer that the stay may be granted in the present case as the next date of hearing fixed in the Court of Session is 12.07.2002 and important witnesses have been summoned for their examinationinchief and further examination of the same in the absence of the counsel which would amount to denial of an important right to the petitioners;

The writ petition, which was drafted on 10.7.2002, came up for hearing on 16.7.2002. The Admitting Bench passed the following order :

"Heard learned counsel and perused the record.

Notice of motion to the respondent.

On our asking, Shri Rajan Gupta, Standing Counsel for Central Bureau of Investigation agreed to accept notice.

Reply on behalf of the respondent be filed by 30.7.2002 with a copy to the counsel for the petitioners.

Case be listed for arguments on 31.7.2002."

After completion of the pleadings, the writ petition was disposed of by a Bench consisting of N.K. Sodhi and N.K. Sud, JJ. on 24.4.2003. The Division Bench not only rejected the challenge to the change of venue but also rejected the submission that the change of venue too was likely to adversely affect the petitioners'' capability to defend themselves in the trial. While doing so, the Division Bench observed as under :

"During the course of arguments, we put it to the learned counsel for the petitioners as to what prejudice is caused to the petitioners if the trial is held in Central Jail at Patiala. The prejudice pointed out by the learned counsel was that the counsel representing the petitioners at Patiala remain busy in the courts with their miscellaneous work till about 11.30 AM to 12.00 noon and, therefore, they cannot appear before the trial Judge in the Central Jail which is at same distance from the District courts. On the suggestion of the learned counsel for the petitioners, we passed an interim order on 13.3.2003 and directed the designated Judge to start with the court proceedings in the Central Jail at 12.00 noon sharp every day of the week during which the trial is conducted. Shri Navkiran Singh, learned counsel, on receipt of instructions from the counsel representing the accused in the trial court, stated that they will appear in the court and extend full cooperative for the early conclusion of the trial. We are informed that the trial Judge commences the proceedings in the Central Jail at 12.00 noon by which time counsel for the petitioners are free from their miscellaneous work in the courts and are appearing before the Designated Judge in the Central jail. There should, thus, be no grievance of the petitioners left in this regard. This arrangement will continue notwithstanding the dismissal of this writ petition.

Before parting, we may notice a contention raised by Shri Rajan Gupta, learned counsel for the CBI. It was urged that the order of the High Court dated 20.12.2001 requiring the Sessions Judge to hold the sittings of the Court in the Central Jail, Patiala as communicated on 8.1.2002, amounted to notifying the Central Jail, Patiala as one of the places where the trial could be held and that it would not be necessary to notify the same in the Official Gazette of the State Government. Since we have held that the sittings of the court of sessions can be held even at a place not notified by the High Court, it is not necessary for us to examine the merits of this contention.

In the result, we find no merit in the writ petition and the same stands dismissed leaving the parties to bear their own costs.

The record produced by the State Government has been returned in a sealed cover through Mr. Ashok Bhardwaj, Assistant Advocate General, Punjab."

The order passed by this Court in the writ petition on 13.3.2003 was as under :

"Records in two sealed covers have been produced today in court by the learned Assistant Advocate General. The Court Reader is directed to keep them in safe custody.

Arguments in the case have not concluded. To come up for the remaining arguments on 31.3.2003 at 1.45 P.M.

The learned counsel for the petitioners informs us that the next date in the trial is now fixed before the Special Judge at Patiala on 24.3.2003. He requests that a direction be issued to the Special Judge to commence the trial at 12.00 noon so that the counsel for the petitioners can be present after finishing with their urgent miscellaneous work in the courts at Patiala. The request appears to be fair and reasonable. The Special Judge is directed to commence the trial at 12.00 noon sharp every day of the week during which the trial is conducted. Shri Navkiran Singh, learned counsel for the petitioners undertakes, on receipt of instructions from the counsel for the accused, that the counsel for the accused will appear and cooperate with the court for the early conclusion of the trial. It is, however, made clear that in case the counsel do not appear on any day by 12.00 noon, the Special Judge shall continue with the trial in accordance with law and in that event the petitioners will not be heard to say that their cause has been prejudiced in any manner. This order shall be without prejudice to the rights of the parties and subject to the final orders that may be passed in the writ petition.

Copy of this order be given dasti on payment of requisite charges."

Evidently, during the course of arguments of the writ petition, it must have been pointed out by the counsel appearing on behalf of Abdul Latif that in the period extended from 23.4.2002 to 13.3.2003 about 89 witnesses had been examined. The Court must also have been apprised of the fact that none of the witnesses had been crossexamined. Having failed to obtain the relief sought for by them in the writ petition regarding recalling of witnesses examined in between 23.4.2002 till the date of disposal of the writ petition, the petitioners should have approached the Apex Court in case they were dissatisfied by the judgment. They have instead filed an application under Sections 311, 279 and 309 Cr.P.C. before the trial Court. This application was rejected by the trial Court. It is the rejection of the application before the trial Court that has occasioned the filing of the present petition.

I have heard learned counsel for the parties.

The ground, on which, the petitioners seek the recalling of the prosecution witnesses, is that 89 witnesses examined in between 23.4.2002 till the date of decision of the writ petition, are important witnesses, who could not be crossexamined because of the inconvenience being faced by the lawyers on account of change of venue. Apart from the fact that it would not be appropriate for this Court to go into question, once the merits thereof have already been dealt with by the Division Bench of this Court while disposing of the writ petition in which exactly similar relief had been sought, it would be appropriate to reproduce out here four orders, which were passed by the trial Court on 23.4.2002, 22.5.2002, 23.5.2002 and 29.5.2002:

23.4.2002

"PWs I.M. Chunawala and V.K. Vishwakarma are present. Statement of I.M. Chunawala has been recorded which was running into 18 pages and took whole of the day. The court time is over. PW V.K. Vishwakarma, who is also present is discharged at this stage. Now put up the file on 22.5.2002 for recording of statements of PWs Jaresh Poddar, Salim Imtiaz and Krishnan Ramsubbu, as already fixed on 9.4.2002.

An application has been filed by learned defence counsel under Section 340 Cr.P.C. Copy given to Learned P.P. for CBI. Its reply be also filed on 22.5.2002. The Court will be held in jail from 22.5.2002 onwards,

22.5.2002

As was announced on 24.4.2002, the court was held today in Central Jail, Patiala because the accused Abdul Latif is lodged under Section 268 Cr.P.C. However, I reached the Central Jail, Patiala at about 11.40 a.m. after disposing of the preliminary work which was fixed in the regular court today.

Three witnesses namely Rajesh Poddar, Salim Imtiyaz Ahmed and Krishan Ramsubbu Yadav were present as also the learned Public Prosecutors. However, the learned counsel for the accused had not come present. They were again informed on telephone through the office of the undersigned but they refused to come on the plea that they had no written notice about it. Again, the accused had a talk with his counsel. Inspite of that the counsel did not turn up. Statements of present three witnesses have been recorded. Now put up the file on 23.5.2002 for remaining evidence. Since, it was announced on 23.4.2002 that the court shall be held in Central Jail, Patiala from 22.5.2002, therefore, the accused had the prior notice.

23.5.2002

I reached the Central Jail, Patiala at about 11.45 a.m. as I had gone to Nabha with Her Lordship Hon''ble Inspecting Judge of Patiala Sessions Division to the Maximum Security Jail, Nabha.

Two witnesses namely Dr. Tarun Gupta and SI Sanjay Sharma are present. Statement of Dr. Tarun Gupta was recorded before lunch. None of the counsel was present but after the statement of Dr. Tarun Gupta was over, Sh. H.V. Rai, Advocate, counsel for Bhupal Man Damai and Dilip Kumar Bhujel accused appeared in the court and prayed that he be permitted to crossexamine the witness. This request was allowed and Dr. Tarun Gupta was crossexamined by Sh. H.V. Rai, Advocate before lunch.

After the lunch break the statement of SI Sanjay Sharma was recorded but the counsel for the accused have not turned up inspite of the telephonic message to them. Therefore, the statement was recorded in the presence of the accused and in the absence of the counsel for the accused.

Now put up the file on 24.5.2002 on the statement of remaining prosecution witnesses.

The dates for the month of August are also fixed as 23.08.2002 to 24.08.2002, 26.08.2002 to 29.08.2002 and 31.08.2002 and the court will be held in Central Jail, Patiala as already ordered on 23.04.2002.

29.5.2002

None is present on behalf of the accused. Arguments on all the three applications have been heard. These three applications have been disposed of vide my separate detailed order of even date.

PWs Nadim Amin and Pandharinath Shanker Wavhal are present. Their statements have been recorded and one PW namely Mohd. Sazid was given up.

PW Anil Gajanan Sankhe is also present. When the statement of this witness (PW28) was being recorded in the post lunch sessions then Sh. B.S. Sodhi and Sh. H.C. Rai, Advocates, counsel for the accused appeared. They were requested to be available for crossexamining the witnesses and to assist the court but they submitted that they had come to know about the fate of their applications. They were informed that their applications have been dismissed and they should be available to crossexamine the witnesses but they submitted that they would first read the order and then decide future course of action. They talked to their clients and left the court. Statement of AG Shankhe was completed.

Statement of another witness Sudhir Prabhakar Rao Chaudhary who was also present has been recorded. One witness namely K.G. Shah is also present. But his statement could not be recorded as the court time was over. He is bound down for 30.05.2002. Put up the file on 30.05.2002 for remaining prosecution evidence as already fixed."

A perusal of these orders shows that the Court was prepared to accommodate the counsel for the petitioner in such a manner as their presence in the Central Jail, Patiala in connection with the trial of the petitioner, did not prejudicely affect their appearance in other cases that were fixed for a particular date. It was with this view in mind that the Division Bench in Civil Writ Petition No. 10798 of 2002 had passed the order directing the District Judge to fix the trial after lunch. However, for reasons best known to them, the parties in consultation with their counsel tried to scuttle the progress of the trial as is evident from the fact that even the offer of the trial Court to provide legal aid at State expense, in case the counsel were not inclined to appear in Court, was turned out. The petitioner has intentionally declined to avail the opportunity of crossexamination that was being offered to him time and again. It does not lie in his mouth now to move an application for recalling for crossexamination of those witnesses whose statements on oath have already been recorded and inspite of opportunities being given him time and again, he has not cared to crossexamine them.

Section 311 Cr.P.C., which reads as under :

"Power to summon material witness, or examine person present Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine, any person already examined; and the Court shall summon and examine or recall and reexamine any such person if his evidence appears to it to be essential to the just decision of the case."

in my humble opinion was not meant to encourage a litigant to delay the trial in the hope of his well wishers being able to win over or otherwise pressurise the witnesses into not supporting the statements, which have been made by them on oath before the Court. In case such application was to be allowed and encouraged, it would always be possible for persons having at their disposal money and/or muscle power to circumvent the process of law and defeat the interest of justice.

For this view of mine, I seek to place reliance upon the following observations contained in the case reported as Superintendent of Police CBI SIT 30 Greenways Road Malligai, Madras 20 v. The Additional Superintendent, Special SubJail, Poonamallee Madras 56 and another, 19951L.W.(Crl.) 339 :

"A person deliberately and wilfully refusing to exercise his right for appearance and crossexamination, inspite of his having been made aware of the consequences, cannot be heard at a later point of time, to contend that he had a valuable opportunity of crossexamining certain witnesses and hence they should be recalled or tendered for crossexamination."

Even apart from this, there is another aspect, which would disentitle the petitioner to the relief sought for by him. As already pointed out by me by referring in detail to the pleadings of the writ petition, the relief now sought for was prayed for by the petitioners in the aforesaid writ petition. In the writ petition, Abdul Latif and his compatriots had failed to get a favourable order. It would not be open to him now to seek same relief by bringing his prayer within four corners of the Code of Criminal Procedure. Judicial propriety would stand in my way of allowing him to do so far in effect the petitioner seeks a reconsideration of the judgment passed by the Division Bench in proceedings under Sections 401 and 482 Cr.P.C.

Looked at from any angle, there is no merit in this petition and the same is dismissed.