Deepak vs State

Suresh Kait, J.

Crl.M.A. No. 19897/2011(exemption)

Exemption is allowed subject to just exceptions.

Criminal M.A. stands disposed of.

Crl.M.C. No. 4340/2011

Notice issued.

Mr. Navin Sharma, learned APP for State accepts notice.

With the consent of Learned Counsel for parties, matter is taken up for disposal.

Vide order dated 06.07.2010, the application of the petitioner u/s 311 Cr. P. C. for recalling the complainant/PW1 Sh. Devender Pal for cross-

examination was dismissed by learned Trial Court for the reasons as under:-

After hearing the parties it is noted that the PW1 was first examined in the case on 24.03.2000 and said witness was not cross examined by any of

the accused. Thereafter, the application u/s 311 Cr.PC was moved by counsel for the both the accused Sh.D K Bhatia on 28.09.2004 and the

application for recalling PW1 was allowed subject to cost of Rs. 1000/- to be paid and availability of witness thereafter the PW1 had appeared on

23.08.2005 and both the accused had made talk of compromise. The cost of Rs. 1,000/- is not seen to be paid on record. Further, the accused

Deepak had absented on 27.01.2005 when PW was present for cross examination. On 07.04.2006 it is stated by complainant that he does not

wish to compromise. Thereafter, both the accused had absented on 10.11.2006. PW1 was present again on 05.10.2007 and cost of Rs. 1,000/-

was paid to PW1 and on request of counsel for both the accused one more adjournment was granted to cross examine PW1 at 2.00 PM subject

to cost of Rs. 500/- . On 07.02.2008 the PW1 had appeared again and again he was not cross examined by both the accused. Cost of Rs. 500/-

is also remained unpaid. Now, the present application was moved on 23.04.2010.

After hearing both the parties and keeping in view the conduct of both the accused I find the present application is frivolous and seen to be conduct

of accused Sandeep only to delay the trial and thereby the application of accused Sandeep u/s 311 Cr.PC stands dismissed with cost of

Rs.5,000/- which be paid in Legal Aid/DLSA within three days. Copy of the order be sent to Ld. Secretary DLSA for necessary information.

Being aggrieved, the petitioner filed the Revision Petition No.62/2010 before learned Additional Sessions Judge and same has been dismissed

vide order dated 30.09.2010 on the ground that the petitioner/ accused has already been granted sufficient opportunities to cross-examine the

complainant. The same has not been availed by petitioner.

The order under challenge in the instant petition is dated 30.09.2010 passed by learned Additional Sessions Judge. The petitioner/accused is

interested in linger on the case, therefore, he has challenged the same after more than one year. Therefore, I have no hesitation to record that the

petitioner / accused is not a sincere and is interested in delaying the matter, therefore, he deserves to be handled with high hands.

Be that as it may be.

In the interest of justice, I allow the instant petition subject to costs of Rs. 10,000/- out of which Rs. 5,000/- to be paid to the complainant and

Rs. 5,000/- be paid in favour of ""Welfare Fund for Children and Destitute Women at Nirmal Chhya, Jail Road, Tihar, New Delhi"" within two

weeks from today. I make it clear that learned Trial Court shall afford only single opportunity to petitioner to conduct and conclude the cross

examination of the complainant. In case of failure on the part of petitioner to conduct or conclude the cross-examination of complainant, on a

particular day fixed by learned Trial Court, it is open for the learned Trial Court to proceed as per law.

It is further clarified that if the petitioner fails in making the payment of costs within the time stipulated above, the relief granted to petitioner

stands cancelled.

Petitioner shall appear before learned Trial Court on 20.01.2012 at 02:00PM for fixing the date for appearance and cross-examination of

complainant.

Consequently, Criminal M.C.No. 4340/2011 is allowed and stands disposed of.