Rachna Prakashan Pvt Ltd v. State & Anr

311 Cr.P.C. was filed for recalling the Complainant for cross-examination the same was dismissed by the impugned order dated 22"^^ February, 2011. The reason for non-appearance of the learned counsel for the accused/Petitioner was that he had gone to see his near relative who was very serious. On 20^^ December, 2010 the proxy counsel for the accused was asked by the Court to cross-examine the witness but he was not able to cross-examine as he was not acquainted with the facts. The application was CRL.M.C. 875/2011 2011:DHC:10421 u objected by the Complainant by filing a detailed reply and it was submitted by the counsel for the Complainant that non-appearance ofthe main counsel is just to linger on the matter further and on the pretext stated above and the same appears deliberate and intentional. Learned trial court held that the accused was not present on 20^^ December, 2010 and his application for exemption from personal appearance was moved seeking exemption from personal appearance as well as for the adjournment by the proxy counsel. The matter was passed over so that the counsel for the accused may appear and the witness of the complainant may be cross-examined. When the matter later came up counsels appearing for the accused filed memo of appearance and witness was tendered for cross-examination but was not cross-examined by the counsel. Thus, proper opportunity was given to the accused for the cross-examination. In view of these facts, since the accused did not avail the right to cross-examine, the same was closed and the application ofthe Petitioner seeking recalling ofthe witness was dismissed. I have heard learned counsel for the parties. A perusal of the certified copy of the order sheet filed by the learned counsel for the Respondent shows that the matter was listed on 3*^^ October, 2009 when both the accused persons were present on bail along with their counsels. Evidence by wayof affidavit ofthe Complainant was filed and the copy of the evidence was supplied to the accused. The case was thereafter fixed for 21'^ November, 2009 for the complainant's evidence however, on 21®^ November, 2009 boththe accused persons were present and so were the Complainant and their authorized representative. However, the case had to be adjourned to 26^^ March, 2010 as the learned Presiding Officer was on leave. On 26^^ March, 2010 both the parties were present, that is, the Complainant and the accused person were present however, the counsels for both the parties were not available and thus, the complainant's evidence could not be conducted. On 20^*" December, 2010 the application for exemption from personal appearance of the accused was dismissed as the proxy counsel was not authorized to appear on behalf of the complainant. On pass over the memo of appearance was filed. The counsel was asked to cross-examine however he could not to do so as he was not ready. Thus the witness was discharged. On 22"'^ February, 2011 the application for recalling the witness was dismissed vide the impugned order. Thus, 20^^ December, 2010 was the first date when the accused had moved an application for exemption from personal appearance through proxy counsel and it was also pointed that the learned counsel for the accused was not present because ofpersonal difficulty and the learned proxy counsel was not prepared for the cross-examination. However, learned Trial Court gave no further opportunity and closed the cross examination. The learned trial Court has dismissed the application for recalling of the witnesses in view of the decision of the Hon'ble Supreme Court in Hanuman Ram v. State ofRajasthan, 2008 (15) SCC 652. Their lordships in the said decision were dealing with a case where the witnesses had already been cross-examined once and further an application was moved by the counsel for theAppellant for recalling ofwitnesses in order to confront them with their previous statements. Hence, the order of recalling of witnesses passed by the High Court was set aside observing that sufficient opportunity had already been granted to the Appellants when they were cross-examined for the first time. However, in the case at hand, the witnesses have not been cross-examined even once, due to the fact that the learned counsel for the accused was not available and the learned proxy counsel was not ready for the cross-examination. Thus, the Petitioners were not granted sufficient opportunity to cross-examine the witnesses. In the facts and circumstances of the case, I deem it fit to set aside the impugned order dated 22""^ February, 2011 passed by the learned Trial Court. The complaint is now fixed for 2"^^ July, 2011 when the accused will be granted opportunity to cross-examine the complainant's witnesses and no further opportunity will be granted except ifthe adjournment has to be given for the reason not related to the accused persons or for some unforeseen circumstance. Petition andthe pending application are disposed of. Order dasti. '^MUKTA GUPTA, J. MAY 24, 2011

CRL.M.C. 875/2011 page 5 of5

JUDGMENT