Dablu @ Suraj v. State (N.C.T) of Delhi

1. The present petition has been filed challenging the order dated 21.09.2022 whereby learned Trial Court had permitted to summon HC Naveen, HC Vijay, HC Jitender MHC(Ms) and the Ct. Yashpal. As per the order sheet Ct. Yashpal had taken subsequent exhibits to the FSL. Learned Trial Court on the request of the IO, ordered for the summoning of these witnesses. The petitioner has assailed this order on the ground the same is patently illegal, arbitrary and against the VERMA settled law and procedure of criminal trial on the ground that the same is in the teeth of Section 204 (2) of Cr. P.C. according to which no summons or warrant shall be issued against the accused until a list of prosecution witnesses has been filed.

2. The plea of the counsel for the petitioner is that these witnesses have been summoned at the fag end of the trial as an afterthought only for the purposes of plugging the loopholes in the case of the prosecution, noticed during the cross-examination of the investigation officer.

3. It has also been summoned that the cross examination of the investigation officer was still pending.

4. Learned counsel for the petitioner submits that no role whatsoever has been ascribed to the summoned witnesses in the original as well as the supplementary charge sheet. The grievance of the learned counsel for the petitioner is that the name of these witnesses did not find place in the list of witnesses filed by the prosecution either in the original charge sheet or the supplementary charge sheet.

5. Learned counsel for the petitioner submits that now the trial has been completed before the learned Trial Court and therefore the present petition is required to be heard immediately and be decided in accordance with the law.

6. Learned APP for the State submits that the in fact, earlier the petitioner was in custody and he had moved an application before the Hon’ble Supreme Court for speedy trial. The Hon’ble Supreme Court vide order dated 23.03.2022, in SLP No. SLP(Crl) No.-008154 /2021 had passed the following orders: VERMA “Having heard learned counsel appearing on behalf of the petitioner as also the learned counsel appearing on behalf of the respondent – State and on carefully perusing the material placed on record, we see no reason to interfere with the impugned order passed by the High Court dismissing the petition for regular bail preferred by the petitioner herein. The special leave petition is, accordingly, dismissed. However, taking into consideration the fact that out of 21 witnesses only 6 have been examined so far, we direct the trial court to expedite the trial and conclude the same within a period of six months from the date of receipt/production of a copy of this order. If the trial is not concluded within the time stipulated hereinabove, the petitioner would be at liberty to renew his prayer for bail.”

7. Learned APP for the State submits that in pursuance to this order, the trial was conducted expeditiously. It has also been submitted that now the petitioner is on bail. It has further been submitted that any order staying the trial now would be contrary to the order of the Hon’ble Supreme Court.

8. It is a settled proposition that the prosecution is duty bound to examine all the witnesses who are necessary for the adjudication of the matter in dispute. It is not necessary that the witnesses whose statements have been recorded under Section 161 Cr. P.C. can only be examined by the learned trial Court. The witnesses allowed to be permitted to be examined by the learned Trial Court are formal witnesses/link witnesses. It is not necessary that their statements should have been recorded under Section 161 Cr. P.C. The purpose of conducting the trial is to reach the truth and to impart the justice. The VERMA trial cannot be converted into a battle of witnesses. The duty of the learned Trial Court is to ensure that the procedure is the handmaid of justice and for mere procedural technicalities, the hands of the learned trial court cannot be bound for summoning of the essential witnesses and material which is essential for the just decision of the case. The reliance of learned counsel for the petitioner upon Section 204 (2) Cr. P.C. is misplaced, as this provision relates to issuance of summons in a private complaint case. In respect of the State case, the police officer is only required to state the name of the persons acquainted with the facts of the case as provided under Section 173 (2) Cr P.C. However, there is no bar that the prosecution cannot examine any person whose name has not been stated. The only pre-condition is that the testimony of such witnesses should be essential for the just decision of the case. In this regard, reference can also be made to section 311 Cr. P.C which provides that the Court may, at any stage summon any person as a witness if his evidence appears to be essential for the just decision of the case. The order was passed by the learned Trial Court in the presence of the learned counsel for the petitioner and no such resistance was made at the time of passing of such order.

9. The evidence allowed to be produced by learned Trial Court is merely formal/link witnesses and these witnesses are in no way going to introduce a new case. The principle of natural justice requires that the accused should not be confronted with the case which he was not aware of earlier. Witnesses who were allowed will merely prove the movement of case property and will in no way cause prejudice to the parties. I do not find any illegality in the impugned order. Hence, the VERMA petition is dismissed.

10. Learned counsel for the petitioner submits that he may be given four weeks’ time to approach the Hon’ble Supreme Court against this order.

11. In view of the submissions made, the learned Trial Court may adjourn the case after 10.04.2023. In case, no order is received, the learned Trial Court may proceed further in accordance with law.

12. Accordingly in view of the directions, the present petition stands dismissed as disposed of.

13. The next date of hearing, i.e., 14.08.2023 stands cancelled.

DINESH KUMAR SHARMA, J MARCH 3, 2023 VERMA