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' . ,v $-40 HIGH COURT OF DELHI
CRL.M.C. 5033/2015
ABDUL NASIR @ NASIRIQBAL Petitioner
Through Mr.AjitSingh, Adv. with Ms.Shashi Ranjan, Adv.
CRL.M.C. 5033/2015
ABDUL NASIR @ NASIRIQBAL Petitioner
Through Mr.AjitSingh, Adv. with Ms.Shashi Ranjan, Adv.
VERSUS
STATE (GOVT OF NOT OF DELHI) Respondent
Through Mr.PannaLai Sharma, APP for the State with SI Rohit Kumar, PS
Jafrabad.
Through Mr.PannaLai Sharma, APP for the State with SI Rohit Kumar, PS
Jafrabad.
CORAM:
HON'BLE MR. JUSTICE P.S.TEJI
11.12.2015 Crl.M.A. No.18135/2015 Allowed, subject tojust exceptions.
11.12.2015 Crl.M.A. No.18135/2015 Allowed, subject tojust exceptions.
CRL.M.C. 5033/2015
The present petition under Section 482 of the Code of Criminal
Procedure, 1973 has been filed against the order dated lO^'' November, 2015 passed by the Trial Court dismissing the application under Section
311 ofthe Code ofCriminal Procedure (Cr.P.C.) filed by the petitioner to recall the PW-7 Ass Mohd. for his further cross-examination. The operative part ofthe order dated 19^*^ November, 2015 reads as under:-
"xxx PW 7 Sh.Aas Mohd., who is material witness ofthe prosecution, has been cross examined in length and every aspect ofhis examination-in-chief has been cross examined
2015:DHC:11337 by accused. PW cannot be allowed to be recalled just to ampute his conduct, if accused fail to put certain questions with regard to his conduct. As such, the plea taken by the accused is just a delay tactic and re-examination of PW 7 is not necessary for the proper adjudication of the case, accordingly, application of accused Abdul Nasir is not maintainable, hence dismissed.
Another application under Section 315 Cr.P.C. has been moved on behalf of accused Imran for his examination on oath as DW.
Arguments on application heard.
Since the case is fixed for DE andaccused wants to examine himselfas DW, accordingly, he is allowed to be examined in his defence as DW.
DWl Sh.Mohd. Imran is present, examined and discharged.
No otherDW is to be examined, henceDE closed.
Put up for order on bail application of accusedRashid on 20.11.2015 and final arguments on 09.12.2015."
Perusal of the order further shows that the case was fixed for DE and DE was closed on that date and the case was adjourned to 9^^
December, 2015. Learned counsel for the petitioner has submitted that th ^ on 9 December, 2015, the arguments on behalf of other accused were heard but the arguments on his part were deferred for 18^^ December, 2015 as the petition ispending before this Court.
1have gone through the case and heard the learned counsel for the parties. Apparently, testimony of PW-7 was completed on 8^"^ August, 2014 and thereafter, the trial continued and ultimately, the statement under Section 313 of the Cr.P.C. and his statement was recorded and reached to the stage ofdefence evidence rather than reaching to the stage of arguments when other accused namely Mohd. Imran moved an application under Section 315 of Cr.P.C. and his statement was recorded and the present application was disposed of and the case was fixed for final arguments. Perusal of the application as well as the order of Trial
Court shows that the testimony of the witness was recorded on 8'^
August, 2014.
The learned defence counsel for all the accused persons concluded the cross-examination of PW 7 and thereafter, a number of witnesses were also examined.
The FIR in the present case is of 2012 under Sections 302/120-
B/506/34 of the Indian Penal Code, for the commission of murder and, thereafter, trial started. PW 7 was examined in the month of August,
The present petition under Section 482 of the Code of Criminal
Procedure, 1973 has been filed against the order dated lO^'' November, 2015 passed by the Trial Court dismissing the application under Section
311 ofthe Code ofCriminal Procedure (Cr.P.C.) filed by the petitioner to recall the PW-7 Ass Mohd. for his further cross-examination. The operative part ofthe order dated 19^*^ November, 2015 reads as under:-
"xxx PW 7 Sh.Aas Mohd., who is material witness ofthe prosecution, has been cross examined in length and every aspect ofhis examination-in-chief has been cross examined
2015:DHC:11337 by accused. PW cannot be allowed to be recalled just to ampute his conduct, if accused fail to put certain questions with regard to his conduct. As such, the plea taken by the accused is just a delay tactic and re-examination of PW 7 is not necessary for the proper adjudication of the case, accordingly, application of accused Abdul Nasir is not maintainable, hence dismissed.
Another application under Section 315 Cr.P.C. has been moved on behalf of accused Imran for his examination on oath as DW.
Arguments on application heard.
Since the case is fixed for DE andaccused wants to examine himselfas DW, accordingly, he is allowed to be examined in his defence as DW.
DWl Sh.Mohd. Imran is present, examined and discharged.
No otherDW is to be examined, henceDE closed.
Put up for order on bail application of accusedRashid on 20.11.2015 and final arguments on 09.12.2015."
Perusal of the order further shows that the case was fixed for DE and DE was closed on that date and the case was adjourned to 9^^
December, 2015. Learned counsel for the petitioner has submitted that th ^ on 9 December, 2015, the arguments on behalf of other accused were heard but the arguments on his part were deferred for 18^^ December, 2015 as the petition ispending before this Court.
1have gone through the case and heard the learned counsel for the parties. Apparently, testimony of PW-7 was completed on 8^"^ August, 2014 and thereafter, the trial continued and ultimately, the statement under Section 313 of the Cr.P.C. and his statement was recorded and reached to the stage ofdefence evidence rather than reaching to the stage of arguments when other accused namely Mohd. Imran moved an application under Section 315 of Cr.P.C. and his statement was recorded and the present application was disposed of and the case was fixed for final arguments. Perusal of the application as well as the order of Trial
Court shows that the testimony of the witness was recorded on 8'^
August, 2014.
The learned defence counsel for all the accused persons concluded the cross-examination of PW 7 and thereafter, a number of witnesses were also examined.
The FIR in the present case is of 2012 under Sections 302/120-
B/506/34 of the Indian Penal Code, for the commission of murder and, thereafter, trial started. PW 7 was examined in the month of August,
ORDER
2014. Thereafter, the other witnesses were examined and the Trial Court came to almost a conclusion. Even the statement under Section 313 of Cr.P.C. was recorded and the case was fixed for the defence evidence. In the facts and circumstances, I do not find any ground to exercise the inherent power to intervene in the order passed by the Trial Court as the application is devoid ofmerit. The petition is dismissed.
DECEMBER 11,2015 aa p.;^.TEJi, j