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TMI Blog2021 (11) TMI 756X X X X Extracts X X X X X X X X Extracts X X X X ..... subject to their examining the defence witnesses on one single day. The cross-examination of all such defence witnesses shall also be conducted on the same day. It has been informed that the next date of hearing fixed before the Trial Court is 13.12.2021 - it is directed that the matter be listed before the concerned Trial Court on 22.11.2021 for the petitioners to take appropriate steps for leading their defence evidence. The same shall however be subject to payment of cost of ₹ 30,000/- in each case, to be payable to the respondent, within a period of two weeks from today. - CRL.M.C. 480/2020 and CRL.M.A. 1999/2020, CRL.M.C. 490/2020 and CRL.M.A. 2034/2020 - - - Dated:- 11-11-2021 - HON'BLE MR. JUSTICE MANOJ KUMAR OHRI Petitioners Through: Mr. Yogesh Kaushik, Advocate Respondent Through: Mr. J.P. Singh, Advocate MANOJ KUMAR OHRI, J. (ORAL) 1. The present petitions have been filed under Section 482 Cr.P.C. on behalf of the petitioners assailing the orders dated 30.09.2019 passed by the learned ASJ-02, South-West District, Dwarka Courts, Delhi in CR Nos. 17/2018 and 18/2018, arising out of CC Nos. 4994232/2016 and 4994233/2016 filed under Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot challenged by the petitioners before any Court. Another application under Section 91 Cr.P.C. was filed by the petitioners, seeking direction to the complainant to file original agreement dated 05.12.2012. The respondent/complainant did not deny the execution of the said agreement and resultantly the aforesaid application also came to be dismissed on 30.01.2018. While passing the said order, the Trial Court gave last opportunity to the petitioners to lead defence evidence. 4. The petitioners, despite dismissal of their earlier application filed under Section 311 Cr.P.C., preferred another application under Section 311 Cr.P.C. seeking same relief of recall of CW-1 for confronting him with the agreement dated 05.12.2012. The aforesaid application also came to be dismissed by the Trial Court vide order dated 17.03.2018. It was noted in the order that factum of execution of the agreement dated 05.12.2012 was very much in the knowledge of the petitioners prior to cross-examination of CW1 as it was placed on record by the petitioners themselves alongwith the list of documents filed on 17.11.2014. Despite being aware, the petitioners chose not to cross-examine CW-1 with respect to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e filed immediately. Thereafter, multiple applications were filed not only under Section 311 Cr.P.C. but also under Section 91 Cr.P.C. While disposing of each of such applications, the Trial Court as well as the Revisional Court observed that the petitioners were repeatedly filing applications to delay the proceedings. 10. A perusal of the order sheets placed on record would show that the petitioners were directed to lead defence evidence as early as on 25.07.2015 and thereafter the matter came to be listed on more than 25 occasions. Although on some occasions, the matter could not be taken up on account of valid reasons, this Court is constrained to observe that on more than 20 occasions, the matter could not be proceeded with as exemption applications were filed on behalf of the petitioners. Insofar as the prayer seeking recall of CW-1 is concerned, it has been contended that the earlier counsel failed to cross-examine the said witness on the aspect of agreement dated 05.12.2012 and this error could be detected only when the present counsel took over. 11. As noted earlier, prior to cross-examination of CW-1 on 05.02.2015, the petitioners themselves placed on record a copy o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deration for allowing recall of witnesses, particularly at the fag end of the trial; (vii) Mere change of counsel cannot be ground to recall the witnesses; (viii) There is no basis for holding that any prejudice will be caused to the accused unless the witnesses are recalled; (ix) The High Court has not rejected the reasons given by the trial court nor given any justification for permitting recall of the witnesses except for making general observations that recall was necessary for ensuring fair trial. This observation is contrary to the reasoning of the High Court in dealing with the grounds for recall i.e. denial of fair opportunity on account of incompetence of earlier counsel or on account of expeditious proceedings; (x) There is neither any patent error in the approach adopted by the trial court rejecting the prayer for recall nor any clear injustice if such prayer is not granted. (emphasis added) 13. From the judicial dictum outlined hereinabove, it is apparent that mere change of counsel cannot be a ground to recall a witness. Further, the agreement dated 05.12.2012 was always in the knowledge of the petitioners, and yet, the first application for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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