Krishan Kumar vs State (GNCT) Of Delhi

Manoj Kumar Ohri, J

The present petition has been filed under Section 482 Cr.P.C. on behalf of the petitioner seeking setting aside of the orders dated 01.09.2021 and

21.09.2021 passed by the learned ASJ, West District, Tis Hazari Courts, Delhi, whereby opportunity of the petitioner to cross-examine the witness

Vinod Kumar Chauhan (PW-1) was closed and the application filed under Section 311 Cr.P.C. seeking recall of the said witness dismissed.

Learned counsel for the petitioner submits that initially, both the father and the mother of the deceased were cited as prosecution witnesses, i.e.,

PW-1 and PW-2 respectively. To safeguard the interest of the petitioner so that the prosecution witnesses may not improve upon their case, a request

was made to the Trial Court for an opportunity to cross-examine both the witnesses on one day. However, the petitioner’s request was declined

by the Trial Court vide the impugned orders and on 01.09.2021, only Vinod Kumar Chauhan (PW-1) was present and examined, whereas the mother

of the deceased (PW-2) was not summoned on that day.

 Learned counsel also submits that although an application under Section 311 Cr.P.C. seeking an opportunity to recall and cross-examine the witness

Vinod Kumar Chauhan was filed, the prosecution subsequently dropped PW-2 from the array of witnesses. He prays that under the circumstances,

one opportunity may be granted to the petitioner to cross-examine Vinod Kumar Chauhan on one single day, on which day he will also conduct the

cross-examination of the aforesaid witness.

The scope of Section 311 Cr.P.C. has been considered by the Supreme Court in P. Sanjeeva Rao v. State of Andhra Pradesh reported as (2012) 7

SCC 56, where the Court held as under:-

Grant of fairest opportunity to the accused to prove his innocence is the object of every fair trial, observed this Court in Hoffman

Andreas v. Inspector of Customs.

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We are conscious of the fact that recall of the witnesses is being directed nearly four years after they were examined-in-chief about an

incident that is nearly seven years old. … we are of the opinion that on a parity of reasoning and looking to the consequences of denial of

opportunity to cross-examine the witnesses, we would prefer to err in favour of the appellant getting an opportunity rather than protecting

the prosecution against a possible prejudice at his cost. Fairness of the trial is a virtue that is sacrosanct in our judicial system and no price

is too heavy to protect that virtue. A possible prejudice to prosecution is not even a price, leave alone one that would justify denial of a fair

opportunity to the accused to defend himself.

In Natasha Singh v. Central Bureau of Investigation (State) reported as (2013) 5 SCC 741, while referring to its earlier decisions in Mir Mohd.

Omar and Others v. State of West Bengal reported as (1989) 4 SCC 436, Mohanlal Shamji Soni v. Union of India and Another reported as 1991 Supp

(1) SCC 271, Rajeswar Prasad Misra v. State of West Bengal and Another reported as 1966 (1) SCR 178, Rajendra Prasad v. Narcotic Cell through

its Officer in Charge, Delhi reported as (1999) 6 SCC 110, P. Sanjeeva Rao (Supra) and T. Nagappa v. Y.R. Muralidhar reported as (2008) 5 SCC

633, the Supreme Court has held as under:-

Section 311 CrPC empowers the court to summon a material witness, or to examine a person present at ""any stage"" of ""any enquiry"", or

trial"", or ""any other proceedings"" under CrPC, or to summon any person as a witness, or to recall and re-examine any person who has

already been examined if his evidence appears to it, to be essential to the arrival of a just decision of the case. Undoubtedly, CrPC has

conferred a very wide discretionary power upon the court in this respect, but such a discretion is to be exercised judiciously and not

arbitrarily. The power of the court in this context is very wide, and in exercise of the same, it may summon any person as a witness at any

stage of the trial, or other proceedings. The court is competent to exercise such power even suo motu if no such application has been filed

by either of the parties. However, the court must satisfy itself, that it was in fact essential to examine such a witness, or to recall him for

further examination in order to arrive at a just decision of the case.

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The scope and object of the provision is to enable the court to determine the truth and to render a just decision after discovering all

relevant facts and obtaining proper proof of such facts, to arrive at a just decision of the case. Power must be exercised judiciously and not

capriciously or arbitrarily, as any improper or capricious exercise of such power may lead to undesirable results. An application under

Section 311 CrPC must not be allowed only to fill up a lacuna in the case of the prosecution, or of the defence, or to the disadvantage of

the accused, or to cause serious prejudice to the defence of the accused, or to give an unfair advantage to the opposite party. Further, the

additional evidence must not be received as a disguise for retrial, or to change the nature of the case against either of the parties. Such a

power must be exercised, provided that the evidence that is likely to be tendered by a witness, is germane to the issue involved. An

opportunity of rebuttal however, must be given to the other party. The power conferred under Section 311 CrPC must therefore, be invoked

by the court only in order to meet the ends of justice, for strong and valid reasons, and the same must be exercised with great caution and

circumspection. The very use of words such as ""any court"", ""at any stage"", or ""or any enquiry, trial or other proceedings"", ""any person

and ""any such person"" clearly spells out that the provisions of this section have been expressed in the widest possible terms, and do not limit

the discretion of the court in any way. There is thus no escape if the fresh evidence to be obtained is essential to the just decision of the

case. The determinative factor should therefore be, whether the summoning/recalling of the said witness is in fact, essential to the just

decision of the case.

Fair trial is the main object of criminal procedure, and it is the duty of the court to ensure that such fairness is not hampered or

threatened in any manner. Fair trial entails the interests of the accused, the victim and of the society, and therefore, fair trial includes the

grant of fair and proper opportunities to the person concerned, and the same must be ensured as this is a constitutional, as well as a human

right. Thus, under no circumstances can a person's right to fair trial be jeopardised. Adducing evidence in support of the defence is a

valuable right. Denial of such right would amount to the denial of a fair trial. Thus, it is essential that the rules of procedure that have been

designed to ensure justice are scrupulously followed, and the court must be zealous in ensuring that there is no breach of the same.

In the present case, it is noted that the petitioner had initially sought to cross-examine both the parents of the deceased on one day, however the

prosecution subsequently chose to drop the mother of the deceased, i.e. PW-2, from the array of witnesses. It has been informed that till date, only

one witness has been examined and the other witnesses are yet to be examined by the prosecution.

Doubtless, the petitioner in the present case had ample opportunity to cross-examine the aforesaid witness but he did not utilise the same. Be that as

it may, this Court cannot lose sight of the fact that a fair trial is the hallmark of criminal procedure. It entails not only the rights of the victims but also

the interest of the accused. It is the duty of every Court to ensure that fair and proper opportunities are granted to the accused for just decision of the

case. In furtherance of the above, adducing of evidence by the accused in support of his defence is also a valuable right and allowing the same is in

the interest of justice.

Keeping in view the aforesaid and considering the fact that the petitioner has been charged for the offence punishable under Section 304B IPC and

the witness Vinod Kumar Chauhan is the father of the deceased, this Court deems it apposite to grant one opportunity to the petitioner to cross-

examine the aforesaid witness, subject however to cost of Rs.5,000/- (Rupees Five Thousand Only) to be deposited by the petitioner with the Delhi

State Legal Services Authority within a period of six weeks from today. On deposit of the cost, the Trial Court shall summon the aforesaid witness for

one day, on which date, learned counsel for the petitioner shall conduct the cross-examination of PW-1 and no adjournment shall be granted in this

regard.

It is informed that the matter is fixed before the Trial Court for 25.02.2022. The Investigating Officer shall take appropriate steps to summon the

aforesaid witness, and for that purpose, the matter shall be listed before the Trial Court on 14.02.2022.

It is further directed that in case the petitioner does not cross-examine the aforesaid witness on the date fixed by the Trial Court and seeks an

adjournment, his right to cross-examine the witness shall stand closed.

The petition is deposed of in the above terms, along with the pending application.

A copy of this order be communicated to the concerned Trial Court through the learned Principal District & Sessions Judge, Tis Hazari Courts,

Delhi.