Order 26

Order Details: COPY OF JUDICIAL PROCEEDINGS
Pdf Text: CNR No. DLCT11-000347-2022
IA No. 01/2024
CC No. 39/2022
FIR No. 17/2019
PS : ACB
State Vs Manish Lal
09.10.2024
Present : Sh. Masood Ahmad, Ld. Chief P.P. for the State.
Accused on bail.
Sh. Pranav Gupta, ld. Counsel for the accused.
Today an application u/s 348 of BNNS/Section 311 Cr.P.C.
moved on behalf of the accused seeking recall of PW10 ASI Ashok Kumar
Mishra is listed for consideration.
It is submitted by Ld. Counsel for the accused that PW10
ASI Ashok Kumar was examined-in-chief on 04.08.2023, however, his
cross-examination was deferred as the counsel for accused was indisposed.
On the next date of hearing i.e. on 17.08.2023 ld. Counsel for accused was
not present and the opportunity to cross-examination was treated ‘NIL’. Ld.
Counsel further submitted that he filed his vakalatnama on 31.07.2024 and
thereafter he inspected the file properly and he came to know that PW10,
who was the member of raiding team, has not been cross-examined. It is
urged that cross-examination of PW10 is essential to the just decision of the
present case and no cross-examination of this witness would cause great
prejudice to the accused. It is accordingly prayed the PW10 may be recalled
for his cross-examination on behalf of the accused.
The application is opposed by ld. Chief P.P. for the State
stating that PW10 was tendered for his cross-examination on behalf of
accused on two dates of hearing, however, accused failed to cross-examine
him. It is urged that statement of accused u/s 313 Cr.P.C. has already been
recorded and now case is at the stage of recording statements of defence
witnesses. It is urged that now accused cannot be allowed to fill up the
lacuna left in the case and as such application ought to be dismissed.
It is settled proposition of law that the provisions of section
311 Cr.P.C. are liberal in nature, however, the discretion U/s 311 Cr.P.C.
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cannot be exercised to delay the trial nor to fill up the lacuna in the case. The
object underlining section 311 Cr.P.C. is that there may not be failure of
justice on account of mistake of either party in bringing valuable evidence on
record or leaving ambiguity in the statements of witnesses examined from
either side. The determinative factor is whether it is essential to the just
decision of the case. (
V.N. Patil Vs K. Niranjan Kumar date of decision
04.03.2021 referred to).
Perusal of the record reveals that on 04.08.2023 ld.
Counsel for accused did not appear as he was reportedly on medical rest and
even on 17.08.2023 also ld. Counsel for accused did not appear before the
court and as such cross-examination of PW10 was treated as ‘Nil’. After
recording of statement of accused u/s 313 Cr.P.C., accused changed his
counsel and fresh vakalatnama was filed on record and only thereafter
present application was filed by ld. Counsel for accused. As per charge-
sheet, PW10 was a material witness being member of raiding team.
Admittedly, present application is filed at very late stage as
the case is fixed for recording DE, however, considering the fact that PW10
is a material witness and he has not been cross-examined at all by the
accused, in the interest of justice, one opportunity is granted to the accused
to cross-examine PW10 ASI Ashok Kumar Mishra on one date subject to
his availability. It is made clear that only one opportunity shall be given to
the accused to cross-examine PW10 ASI Ashok Kumar Mishra.
Accordingly, application stands disposed of.
Let PW10 ASI Ashok Kumar Mishra be recalled for his
cross-examination on behalf of accused u/s 348 BNNS (u/s 311 Cr.P.C.) for
the next date of hearing i.e. 22.11.2024.
( Deepali Sharma )
Special Judge, PC Act(ACB-01)
RADC, New Delhi.
09.10.2024
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