HARYANA STATE INDUSTRIAL & INFRASTRUCTURAL DEVELOPMENT CORPORATION LIMITED Vs. DAYA NAND JAIN AND OTHERS

JUDGEMENT

(1.) Prayer in the present petition, filed under Section 482, Cr.P.C., is for setting aside the order dated 18.9.2012, passed by the learned Additional Chief Judicial Magistrate, Sonepat, whereby the application moved under Section 311, Cr.P.C., by the complainant for summoning of the additional evidence and for re- calling one witness was dismissed. Prayer has also been made to set aside the order, dated 18.3.2013, passed by the learned Additional Sessions Judge, Sonepat, whereby the criminal revision petition filed by the petitioner challenging the order dated 18.9.2012, passed by the Additional Chief Judicial Magistrate, evidence of the witnesses mentioned in the application presented before the learned Trial Court is essential for the just decision of the case. To elaborate his argument, he submitted that Harinder Singh was a member of the fact finding Enquiry Committee, which was constituted to identify the property and after doing the needful, the report was submitted. Inspector Pardeep Kumar had to be examined being the investigating officer. Learned counsel further contended that the authorised representative of M/s Protocol Surveyors and Engineers Ltd., is essential, as the agency had made inquires regarding identification of title of the mortgaged property. He also contended that Smt. Kavita Tuni, who is claiming to be in possession of Plot No. 10-A, being perpetual lessee, which was mortgaged by the respondents- accused, is necessary so that she may identify and prove that the respondents-accused had fraudulently mortgaged the property, to which they were not owners. Learned counsel further submitted that Trilochan, Patwari, had scribed the report, dated 30.7.2007, which could not be put to him when he appeared as a witness in this case. Therefore, he should have been allowed to be recalled. In support of his contentions, learned counsel for the petitioner has placed reliance on P. Sanjeeva Rao v. State of A.P., 2012 3 RCR(Cri) 653, wherein Hon'ble the Supreme to bring on record valuable evidence. It was also held that the prosecution may suffer prejudice on account of a belated recall, but it would be preferable to err in favour of accused rather than protecting the prosecution against a possible prejudice at his cost. Hon'ble the Supreme Court further held that fairness of trial is a virtue that is sacrosanct in our judicial system and no price is too heavy to protect that virtue.

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(3.) I have heard learned counsel for the petitioner and perused the material available on record.