Krishan Kumar Sood v. CBI

1. The i^ire^nt pfetitiM^^ filedJ30h^)petitioner under Section 482 Cr.P.C.- fG£;settingr-.asid^3^the^ dated 02.03.2016 A' ^ -vT 11 • passed by the SpeciaU|u^ge,-£BIj-:rP^i^^^ Courts, New Delhi whereby the application filed by the petitioner to recall PW53 for cross examination was dismissed

2. The brief facts of the case are that an FIR No.RC- 7/2009/CBI/EOU-VII was registered by CBI on 14.07.2009 under Sections 120B, 409, 420, 468 read with Section 109 IPC and Sections 13(2) read with Section 13(l)(d) of Prevention of Corruption Act, 1988 alleging that some higher officials of the State Trading Crl.M.C.No.1359/2016 2016:DHC:9011 Corporationin conspiracy with private persons caused a wrongful loss to STC and wrongful gain to themselves while exporting the wheat from the Food Corporation of India (PCX) and after conducting preliminary enquiry offences under Sections as mentnioned above were found to have been committed by these persons.

3. On 20.07.2011, after completion of investigation, charge sheet was filed in the matter against seven accused persons including the petitioner who was arrayed as accused No.5 in the charge sheet.

4 On 24.11.2012f>tlfe thenfleameilpe^^^^^ Judge, CBI ordered for framing fo chmges mAf* Sectipn. IPG read with 13(2) and ofPfeentita ofCorruption Act 1988 Iga&t all the lified pprsM commenced. '•/ 1 - *s i»"'s f 1 - 5 Duling trial, on 26.0212016,' ^^Scamination in chief of PW53 vj -j o I-V-^ ii Sh.D.P.Mlshra commenced;an(| q^p^ntinued during the day and further examinati&n in chief 29.02.2016. Qh 29.02.2016, further examinatiojiv"ifii "^icjSi'ef. fpf4l|W^^32^cbhl|P9^ cross examination lt#Si)!^bel»lf ofjReu|ed€'§J)y& 6 followed by accused Nos.8,[7] continued till lunch and further cross examination was completed on that day.

6. After cross examination on behalf of the petitioner/accused No.5 was complete, the accused No.3 Dr.Arvind Pandalai started cross-examining PW-53. During cross examination, the said PW-53, while answering to the questions put by the counsel of accused No.3 and by the court, mentioned the name of the petitioner along with accused No.3 with regard to directions being given by the petitioner for putting a revised note on 08.02.2005 despite putting a note on Crl.M.C.No.1359/2016 ^ c 07.02,2005.

7. The cross examination of the said witness was deferred for 01.03.2016. On 01.03.2016, further cross examiation started and later on it was completed. The petitioner thereafter moved an application under Section 311 Cr.P.C. for recalling the said PW53 for further cross examination as certain new facts as stated above had come up during the cross examination done by accused No.3 which were related to the petitioner and sjnce^the said allegation did not find mention in the statemeht^fPW53f(reco4^ 161 &164 nor examination-in-(ffi^ef''h.iid cross exafhlnafiorob|)nducted ofPW53 on behalf right of the petitionerloj^ss exarii|#M||^^fwitness d|0hat score. The petitione^imoved an appii&itfi&J^ the Special Jud^e, CBI stating that sinci PW53 had co4&MMf some new factsi in his cross 6n done by sonie-^acoused;!]^©; tt, ^f| Wit l\|j.4s I along witlgaldjaJ^^iiStlfto his earlier examinatL donebyson,f*|p[3] andhasname|thepetitioner statements hSh^^>titi^^^«'^#^rtunity to cross examine the said'^^S^^^^Igglf'Kad come up after the cross examination ofthe saidXfflfeii'Sy the petitioner/accused No.5. The Trial Court directed the CBI to file reply. After the reply being brought on record hy CBI, the petitioner's application was dismissed vide the impugned order dated 02.03.2016 observingthat ifthe ground taken by the petitoner that some testimony had come on record which allegedly goes agaisnt the interest of the petitoiner, is taken to be a ground for recalling a witness, it will become an endless process where the other accused after cross examination ofthe witness, ifthey Crl.M.C.No.1359/2016 feel aggrieved, would again ask for recalling of this witness. It is not the purpose for which Section 311 Cr.P.C. has been made. Thus, the application was dismissed.

8. In the present petiton, the grounds taken by the petitioner are that during the cross examination of PW53 by accused No.3, new set of facts relating to the petitoner has emerged for the first time, hence it was the right of the petitoenr to cross examination that witness on that score though he had already concluded his cross-examination of that witness. | Q T

9. That noJustifgM the impugned orderwhile,disml|&ngth,eSj|||ifeMthepS|oii§t/accusedNo.5.

10. Thafn4|irejudice"fhi||S^een cause'djo if the said witness had been allowed%%||flid for further cros| examination and the tikitioner had evenj'MM|the time frame wi,ihin which he W fj would crdss examine th^^^a®fw^^ on that score',' but still the apphcaitonNwas toissed^^g^g^f-'^^^

11. That th^^uitlmate'aiin ofthejriafisTb';^bfing out truth and the purpose of fair trial. be given fair opportunity to defend himself."""""*^

12. That the petitioner had moved an application on the very next day during the cross examination ofPW53 by accused No.3.

13. That in the said note datd 07.02.2005, the writtendirections to call recommendation from divison were given by the petitoner only as he was the Director Marketing at that time and since the said recommendation was missing in the said note, it was desired that the recommendations from Division be called as per procedure. It was Crl.M.C.No.1359/2016 Page 4of[5] thus essetial that the said PW be cross examined on that aspect for the just and fair depision ofthe case.

14. I have h^rd the learned senior counsel for the petitoner as well as the learned Special PP for the respondent/CBI and perused the record.

15. I find no illegality or infirmity with the impugned order dated 02.03.2016 so as to call for interference by this Court by invoking power under Section 482 Cr.P.C.

16. However, it is^MSde, clear'that fhe"portion of the testimony of PW53 qua the pCitibSeK^Kich pmerged^Surihg thp, cross examination of the said/vvfitl&ss bypatlu^||lf^3 shalh^Se fjead against the M..MmmMirn petitomer^. fSlliA