Petitioner should not be made to suffer because his counsel could not appear before Trial Court for some reasons: Delhi High Court allows plea seeking recall of prosecutrix and Investigating Officer
Justice Navin Chawla [01-02-2024]

Read Order: SH. GAURAV SARDANA v. THE STATE GOVT. OF NCT OF DELHI & ANR [DEL HC-CRL.M.C. 2069/2022 & CRL.M.A. 8761/2022]

Tulip Kanth

New Delhi, February 14, 2024: The Delhi High Court has accepted the plea of a petitioner seeking recall of the prosecutrix and Investigating Officer for further cross-examination in a case where the prosecutrix appeared for the first time before the Trial Court after a lapse of four years and the petitioner’s counsel could not appear on that day due to his occupation before the High Court.

The Single-Judge Bench of Justice Navin Chawla was considering a petition filed by the petitioner under Section 482 of the Code of Criminal Procedure, 1973 challenging the Order of the Trial Courtdismissing his application filed under Section 311 of the Cr.P.C. seeking recall of the prosecutrix/PW1 and the IO/PW4 for further cross-examination.

It was clear from the impugned order that PW1/prosecutrix was allowed to be recalled for further cross-examination vide an Order dated 01.03.2017 of the Trial Court. She appeared before the Trial Court, however, as the learned counsel for the petitioner did not appear in spite of repeated passovers granted, she was discharged. The Trial Court has also observed that no useful purpose would be served in recalling her as the examination of PW3 had been recorded and nothing substantial had been obtained from his statement.

It was the petitioner’s case that for a period of almost 4 years, the prosecutrix, however, did not appear before the Trial Court. She appeared for the first time only on 07.12.2021. It was submitted that, on that date, unfortunately, he was held up in another matter in the High Court of Delhi and therefore, could not appear before the Trial Court on time. However, the application seeking recall of the PW1 was filed on the very same day before the Trial Court. The Counsel   submitted that the petitioner should not be prejudiced in his defence for non-appearance on part of the lawyer.

On the contrary, the Respondent submitted that the intent of the petitioner was only to delay the trial and it was for this reason that the PW1 was not cross-examined on 7.12.2021, in spite of repeated opportunities being granted to the petitioner for the said purpose. It was the respondent’s case that merely because the counsel does not appear, is no ground to recall the witness.

The Bench opined,  “Though, it is correct that only because of non-appearance of the learned counsel for the petitioner, the clock should not be put back by recalling the witness who has been examined in his absence, at the same time, in the present case, the PW1 had been allowed to be recalled by the learned Trial Court vide its Order dated 01.03.2017.”

It was undisputed that the for a period of almost four years PW1 did not appear before the Trial Court and she appeared for the first time post the Order of 01.03.2017, only on 07.12.2021. The counsel for the petitioner, however, could not appear before the Trial Court on that day due to his occupation before the High Court.

“The application seeking her recall was filed by the petitioner on the very same day. This reflects bona fide on part of the petitioner. In any case, the petitioner should not be made to suffer for the fact that his counsel could not appear before the learned Trial Court for some reasons”, the High Court affirmed.

Considering the fact that at the present stage the only issue before the Court was whether the petitioner had made out a case for recalling the witness, the Nehc held, “PW1 is directed to be recalled for further cross-examination, subject to availability, before the learned Trial Court in terms of the Order dated 01.03.2017. The learned Trial Court shall fix a date for her appearance and for the recording of her further cross-examination.”

The High Court also allowed the petitioner’s plea to recall the Investigating Officer. However, noting that considerable delay had been caused by the petitioner in the trial, the Bench ordered the petitioner to pay costs of Rs15,000 to be paid to the prosecutrix on her appearance before the Trial Court.