Saharoon and Another vs State

Hima Kohli, J.—The present petition is filed by the Petitioners under Article 227 of the Constitution of India read with Section 482 of the Cr.PC praying inter alia for setting aside the orders dated 27.1.2011 and 02.02.2011 passed by the learned ASJ in a case arising out of FIR No. 174/2008 lodged under Sections 398/34 IPC, registered with Police Station: Civil Lines, Delhi.

Counsel for the Petitioners states that that on 27.01.2011, the date fixed for recording the cross-examination of PW-6, PW-7 and PW-9, who were recalled for their cross-examination on the basis of an application filed by the Petitioners on 22.12.2009, subject to payment of costs of Rs. 5,000/-, the counsel for the Petitioners could not appear for the reason that he was held up before this Court in a case registered as Crl. Appeal No. 1044/2010. For that reason, the opportunity to cross-examine the recalled witnesses was closed vide order dated 27.1.2011. He further states that vide order dated 02.02.2011, a fresh application filed by the Petitioners u/s 311 Cr.PC was also dismissed while holding that there was no justification to recall the witnesses at the instance of the defence counsel. He submits that the matter is now listed before the trial court tomorrow for orders.

On enquiry, counsel for the Petitioners states that after 02.02.2011, the date on which the application filed by the Petitioners u/s 311 Cr.PC was dismissed, the matter was listed on two dates. It was fixed for recording the statements of the accused/Petitioners u/s 313 Cr.PC on 15.02.2011. On the said date, statements of the accused/Petitioners were duly recorded and the matter was fixed for 01.03.2011 for arguments. However, on 1.3.2011, at the request of the counsel for the Petitioners, the case has been adjourned for tomorrow. Now comes the present petition on the eve of the hearing of the matter before the learned ASJ.

There is no ground made out by the Petitioners for interference, particularly in view of the manner in which the Petitioners have conducted the case. It is pertinent to note that on 22.12.2009, the Petitioners filed an application u/s 311 Cr.PC praying inter alia for recalling certain witnesses produced by the Respondent/State, namely, PW-6, PW-7 and PW-9, so as to further cross-examine them. Vide order dated 22.12.2009, the said application was allowed, subject to costs of Rs. 5,000/-, with a clear observation that only one chance would be given to the Petitioners/accused to cross-examine the said witnesses. Ultimately, the witnesses were present before the court below on 27.01.2011 for their cross-examination. However the counsel for the Petitioners/accused was not available. As a result, the opportunity to cross-examine the witnesses was closed and the matter was directed to be listed on 02.02.2011 for recording the statements of the accused persons u/s 313 Cr.PC. On 02.02.2011, yet another application was filed by the Petitioners by changing the date on the earlier application, i.e., 22.12.2009 to 27.01.2011, admittedly without any change in the body of the application. The said application was dismissed as being misconceived and devoid of merits. The learned ASJ declined to recall the witnesses at the instance of the Petitioners and the matter was adjourned to 15.02.2011 on which date, the statements of the Petitioners/accused were recorded u/s 313 Cr.PC. Thereafter, it has taken one and a half month for the Petitioners to approach this Court praying inter alia for interference in the order dated 02.02.2011. This is despite the fact that the Petitioners were well aware of the fact that the matter is listed tomorrow before the learned ASJ for orders. It is apparent that the Petitioners are adopting dilatory tactics to prolong the proceedings in the trial court and the present petition is yet another step in that direction.

The petition is dismissed alongwith the pending application, as being devoid of merits.