PRADEEP KUMAR SHARMA ..... Petitioner Through Mr. Anupam S. Sharma, Advocate v. STATE OF DELHI .....

1. Notice. Ms. Ritu Gauba, APP accepts notice on behalf of State.

2. Vide this petition the petitioner had challenged the impugned order dated 08.08.2010whereby the ld. ASJ has dismissed the application for recalling PW[1] with cost of Rs.1,000/-. Ld. counsel for the petitioner submits that the cost has already been deposited in Legal Aid.

3. I note that on 06.10.2010 all the accused appeared before the ld. ASJ and it is observed that "today accused again ~ ~ 2011:DHC:1987[5] submits that their counsel has refused to come. Matter wa~ fixed for PE".

4. Thereafter, the petitioner moved an application to crossexamine the PW[1] and PW[8]. The same was allowed vide order dated 25.04.2011 subject to the condition that, "if the witness is not cross-examined on the said date no further opportunity shall be given and further if for some unforeseen reasons she is not available, then the examination-in-chief already on record shall be read in evidence and no adverse inference shall be drawn for their non cross-examination".

5. Ld. counsel for the petitioner submits that thereafter consecutively for two dates the witness did not appear. Thereafter, the matter was listed on 01.08.2011. Ld. ASJ passed the order as under: "This Court allowed the application of the accused persons u/s 311 Cr.P.C. with the condition that one opportunity shall be granted to the accused persons to cross examine PW[1] and witness if present, shall be cross examined on the same day and no further opportunity shall be granted and if for some unforeseen reasons, witness is not available, then her chief already recorded shall be read in evidence and no adverse inference shall be drawn for the non cross examination."

6. Ld. counsel for the petitioner submits that he was taking '~:- ~- @ medical treatment from Delhi R. Ganesh Marg Clinic, Mayur Vihar, Phase-11 up to 08.08.2011. The medical papers of the ld. counsel for the petitioner are on record. On the date fixed i.e. 01.08.2011 since the ld. counsel for the petitioner could not appear, therefore, proxy counsel Sh. Brijesh Pal moved an application for adjournment of the case on the pretext that ld. counsel for the petitioner was not well. The same was declined by the ld. ASJ vide order dated 01.08.2011 by saying "PE stands closed as completed by Ld. APP for State. To come up for SA on 08.8.2011."

7. Thereafter the ld. counsel for the petitioner moved an application for recalling of PW[1] for cross-examination and the same was dismissed with cost of Rs.1,000/-.

8. I note that the ld. counsel for the petitioner was not well and was taking treatment while sitting at home and the same is evident from the appearance marked by the proxy counsel Sh. Bipul Sharma on 08.08.2011.

9. In my opinion ld. trial Judge should have imposed heavy cost on the petitioner if the ld. trial judge was not convinced with the contention raised in the application by the petitioner. '~ _,, Q Criminal cases revolve around the life of the individual; therefore each case should be dealt with carefully. It is also the duty of the courts that if any of the party deliberately delays the proceeding, then, Court should deal with heavy hands and pass the orders accordingly. In my opinion this case does not come under that category.

10. The prosecution witness PW[1] Priyanka Sharma who appeared in the Court came from Meerut and wasted her entire day in court, therefore PW[1] should at least be compensated by the petitioner. Keeping the above facts and circumstances into view, the order dated 08.08.2011 passed by the ld. ASJ is set aside subject to the condition that the petitioner shall pay Rs.S,OOO/- to the complainant/PW[1] Priyanka Sharma by Pay Order/Bank Draft.

11. Accordingly, ld.Trial Judge is further directed to give liberty to counsel for the petitioner to cross-examine PWl. It is made clear if on the said date, witness is not examined, then PW[1] shall be further entitled for Rs.S,OOO/- as costs from the petitioner for adjournment.

SURESH KAIT,J AUGUST 18, 2011 ~