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TMI Blog2023 (2) TMI 1287X X X X Extracts X X X X X X X X Extracts X X X X ..... to administer justice and not to evaluate the parties on the basis of their performance. In the present case, the allegations include that of the forgery of a letter of the then Minister and thus are quite serious in nature. It is correct that this witness had not appeared before the Court despite having opportunities been given. There may also be a possibility that there might be some lethargy on the part of the prosecution but it is the duty of the Court to ensure that justice should be done and a criminal trial should conclude with the desired objective of the quest for justice. Suppose this witness is not examined, the Court or this case shall always be deprived of some material facts which could have been produced. Taking into account the timeline, which shall expire in the middle of April, the CBI is directed to examine PW C. Edmonds Allen through video conferencing on the date set up by the learned Trial Court.CBI shall not be given more than two opportunities for examining this witness. If the witness fails to appear on these two dates or CBI fails to examine (except for some technical reason), the right to his examination shall automatically stand closed. The learned Trial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Trial Court, vide order dated 26.11.2018 noted that the summons were duly executed and served upon PW C. Edmonds Allen but he did not appear before the court. Learned Trial Court noted that PW C. Edmonds Allen had also been served earlier and sufficient time was given to CBI for the service of summons of PW C. Edmonds Allen in accordance with the law. In the order dated 26.11.2018, it was also specifically noted that vide order dated 24.07.2018, it was made clear that in view of the directions of the Supreme Court to complete the trial within one year, no further opportunity would be granted to CBI for summoning PW C. Edmonds Allen. Therefore, Learned Trial Court on 26.11.2018 inter alia held that in pursuance to the non-appearance of the witnesses no further opportunity can be granted to the CBI and CBI is not in a position to examine the witnesses namely PWs C. Edmonds Allen and Gang Yong. However, the learned Trial Court gave an opportunity to examine IO/Dy. S.P. Vipin Kumar. Accordingly, PW-26 IO/ Dy. S.P. Vipin Kumar was examined on 10.01.2019 and PE was closed. Thereafter, the statements of the accused persons were recorded. The defence evidence of the accused person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Trial Court. Furthermore, it has been stated that even after the lapse of 8 years since the registration of the present case against respondent No. 1, the CBI has not recorded the statement under Section 161 Cr.P.C. of the witness Mr. C. Edmonds Allen and there is no investigation qua the said witness filed in the present case. It has been averred in the reply that CBI is attempting to fill up the lacunae in their evidence. Attention has been drawn to the malafide conduct of Mr. C. Edmonds Allen and his continuous inference in the judicial process. It has been stated that Mr. C. Edmonds Allen has taken the Indian legal system for granted and he has been taking steps to create confusion. Mr. C. Edmonds Allen has communicated to different higher authorities dated 02.07.2016 has strongly protested against the receipt of summon by the Court. It has been stated that Mr. C. Edmonds Allen had no intention to depose and has only misled the Indian Judiciary. It has been stated that Mr. C. Edmonds Allen without having to appear or having locus standi has repeatedly tried to harass Respondent No. 1 and has entailed him in a web of malicious litigation. 9. In the present proceedings also, Mr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case. He submits that even the intervenor application of the witness reveals that he has been facing threats and the documents placed on record also reveal that the said witness was medically advised to avoid taking long flights as he had seven leg and hip surgeries and due to his old age, there were very high chances of him suffering a cardiac arrest due to deep vein thrombosis during a long flight. Learned counsel the petitioner submits that the respondents have taken a fallacious plea that the examination of this witness is meant to fill the lacuna of the prosecution case. In support of his contentions, reliance has been placed upon the judgment of Supreme Court in Manju Devi vs. State of Rajasthan: (2019) 06 SCC 203 and UT of Dadar and Nagar Haveli and Anr. Vs. Fatehsinh Mohansinh Chauhan:. (2006) 7 SCC 529 12. Sh. Maninder Singh, learned senior counsel for Respondent No. 1 (A-1) submits that the present petition moved by the CBI is totally malicious. The learned senior counsel has taken this Court through the entire proceedings conducted by the learned Trial Court to summon and examine PW C. Edmonds Allen and has submitted that it would be totally unjust to call and examine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... date has not attempted to trace the said witness and even in the present petition the CBI does not wish to examine Mr. Gang Yong. Learned Counsel for the Respondent no. 1 lastly submits that Mr. C. Edmonds Allen is an interested witness, as he as an ongoing dispute with Respondent No. 1, for which criminal complaint are pending before the Ld. ACMM, Patiala House Courts. 13. Learned senior counsel further submits that even otherwise, the witness cannot be allowed to be examined through video conferencing and if this Court feels that Mr. C. Edmonds Allen is required to be examined, he may be summoned to appear physically before the Court for the purpose of recording his testimony. Attention has been invited to the Video Conferencing Rules by the High Court of Delhi, New Delhi notified vide Circular No. 325/Rules/DHC dated 01.06.2020. Learned senior counsel submits that Rule 5.3.11 of the Video Conferencing Rules by the High Court specifically states that the witness can be examined in the criminal trial only with the consent of the accused. Rule 5.3.11 reads as under:- 5.3.11 Notwithstanding the provisions of Clause 5.3.1, where witness examination is to take place in a criminal case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arlier are not satisfactory, the summoning of the witness at belated stage would cause great prejudice to the accused and should not be allowed. Similarly, the court should not encourage the filing of successive applications for recall of a witness under this provision. 17. Learned senior counsel submits that in view of the above the present petition is liable to be dismissed. 18. There cannot be any doubt to the submissions made by the learned counsels for the respondents that the learned Trial Court had given more than sufficient opportunities to summon PW C. Edmonds Allen. It is a matter of record that PW C. Edmonds Allen did not appear before the learned Trial Court despite having been served. However, it is also a matter of record that PW C. Edmonds Allen is an old aged person with various ailments. It is pertinent to note that the plea of CBI is that the witness did not appear despite being served whereas the plea taken by the witness is that the CBI did not take appropriate steps for his appearance before the learned Trial Court. The question to be considered by this Court is whether only in the view of these rival contentions can a criminal trial be allowed to be adjudicate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e courts the power to summon any person as a witness or to recall and reexamine any witness at any stage of the inquiry, trial, or other proceedings under the code if his evidence appears to be essential for the just decision of the case. It will not be an improper exercise of the powers of the court under section 311 Cr.P.C. to summon a witness merely because the evidence supports the case of the prosecution and not that of the accused. It is, however, to be borne in mind that whereas the section confers a very wide power on the court on summoning witnesses, the discretion conferred is to be exercised judiciously, for strong and valid reasons with caution and circumspection to meet the ends of justice. The function of the criminal court is to administer justice and not to evaluate the parties on the basis of their performance. 22. The scope of Section 311 Cr.P.C. has been discussed by the Hon'ble Supreme Court in UT of Dadar and Nagar Haveli and Anr. Vs. Fatehsinh Mohansinh Chauhan:. (2006) 7 SCC 529, wherein it has been inter alia held as under:- 13. In Mohanlal Shamji Soni v. Union of India it was observed that: (SCC p. 277, para 10) 10 . it is a cardinal rule in the law of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... power under Section 311 Cr.P.C. should be resorted to only with the object of finding out the truth or obtaining proper proof of such facts which lead to a just and correct decision of the case, this being the primary duty of a criminal court. Calling a witness or re-examining a witness already examined for the purpose of finding out the truth in order to enable the Court to arrive at a just decision of the case cannot be dubbed as filling in a lacuna in prosecution case unless the facts and circumstances of the case make it apparent that the exercise of power by the Court would result in causing serious prejudice to the accused resulting in miscarriage of justice. 23. Further, the Supreme Court in the case of Varsha Garg v The State of Madhya Pradesh Ors, Criminal Appeal No. 1021 of 2022 has also inter-alia held as under: 32 The power of the court is not constrained by the closure of evidence. Therefore, it is amply clear from the above discussion that the broad powers under Section 311 are to be governed by the requirement of justice. The power must be exercised wherever the court finds that any evidence is essential for the just decision of the case. The statutory provision goe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... observe his or her demeanour. In fact the facility to play back would enable better observation of demeanour. They can hear and rehear the deposition of the witness. The Accused would be able to instruct his pleader immediately and thus cross-examination of the witness is as effective if not better. The facility of play back would give an added advantage whilst cross-examining the witness. The witness can be confronted with documents or other material or statement in the same manner as if he/she was in Court. All these objects would be fully met when evidence is recorded by videoconferencing. Thus no prejudice, of whatsoever nature, is caused to the accused. Of course, as set out hereinafter, evidence by video-conferencing has to be on some conditions. 14.3 Thereafter, with reference to Sections 284 and 285 CrPC, this Court further observed that:(Praful B. Desai case, SCC pp. 614-15, para 22) 22. ..... Thus in cases where the witness is necessary for the ends of justice and the attendance of such witness cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case would be unreasonable, the Court may dispense with such attendan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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