DINESH KUMAR SACHDEVA Vs. STATE NCT OF DELHI

JUDGEMENT

(1.) This is a petition against the Order dated 13th October, 2009 whereby the application of the petitioner dated 4th April, 2007 for recalling PW-3 Harish Sachdeva for cross- examination was dismissed. A perusal of the record would show that Harish Sachdeva was examined- in-chief on 23rd January, 2003. Since the petitioner did not cross-examine him, the witness was discharged without cross-examination. On an application filed by the petitioner under Section 311 of Cr.P.C., the Trial Court directed recalling of the witness for the purpose of his cross-examination, subject to the payment of Rs.500/- as costs by the petitioner. However, the petitioner did not avail the opportunity granted to him, and therefore the witness was discharged without cross-examination. According to the learned counsel for the petitioner on 4th April, 2007 when this witness was discharged, he was busy in the Court of ACMM, Tis Hazari Courts and, therefore, was not in a position to appear before the Trial Court for the purpose of cross- examining PW-3 Shri Harish Sachdeva.

(2.) The petitioner has placed on record copy of the proceedings dated 4th April, 2007 in the Court of ACMM, in the case registered vide FIR No.222/1992 of PS Pahar Ganj. The proceedings show that his counsel Shri Ajay Burman was busy in that case till 1.00 pm. Thus, the counsel could not have cross-examined PWs before 1.00 pm on 4th April, 2007. The application filed by the petitioner under Section 311 of Cr.P.C. on the same date shows that the witness was discharged at 12.45 pm. Hence, there was some justification for the counsel not being able to appear, before the witness was discharged.

(3.) It is true that the petitioner has been quite negligent in the matter of cross-examination of the witness and did not avail the opportunity granted to him for this purpose. But, considering the fact that PW-3 is a material witness, the counsel was genuinely busy on the date the witness was discharged and that the evidence of the prosecution is yet to be concluded, I feel that in the interest of justice, one more opportunity can be granted to the petitioner to cross-examine the witness, subject to appropriate costs. Hence, subject to petitioner depositing Rs.25,000/- as costs with Delhi High Court Legal Services Committee, one last and final opportunity is granted to the petitioner to cross-examine PW-3 Shri Harish Sachdeva.