28#$~ * IN THE HIGH COURT OF DELHI AT NEW DELHI + CRL.M.C. 870/2011 & Crl. M.A. No. 3260/2011 (Stay) RACHNA PRAKASHAN PVT LTD & ORS. Petitioners Through: Mr. Amit Vohra, Advocate. versus STATE & ANR Respondents Through: Mr. Manoj Ohri, APP for the State. Mr. Rakesh Mukhija and Ms. Harshna Mehra, Advocates for Respondent No. 2. CORAM: HON'BLE MS. JUSTICE MUKTA GUPTA ORDER % 24.05.2011 The grievance of the Petitioner is that the learned counsel for the Petitioner was not available on one date and due to his non-availability the right of cross-examinationwas closed. When an applicationunder Section 311 Cr.P.C. was filed for recalling the Complainant for cross-examination the same was dismissedby the impugnedorder dated 22"'^ February,2011. The reason for non-appearance of the learned counsel for the accused/Petitioner was that he had gone to see his near relative who was very serious. On 20^^ December,2010 the proxy counsel for the accused was asked by the Court to cross-examine the witness but he was not able to cross-examine as he was not acquainted with the facts. The application was CRL.M.C. 870/2011 page 1 of 5 Digitally Signed By:AMULYA Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified 1 objectedby the Complainantby filing a detailedreply and it was submitted bythe counselfor the Complainantthatnon-appearanceof themain counsel isjustto lingeronthe matterfurtherand onthe pretextstatedabove and the same appears deliberateand intentional. Learnedtrial court held that the accused was not present on 20*^'^ December, 2010 and his applicationfor exemptionfrom personal appearancewas moved seeking exemptionfi:om personalappearanceas well as for the adjournmentby the proxy counsel. The matterwas passed over so that the counselfor the accusedmay appear and the witness of the complainantmay be cross-examined. When the matter later came up counsel appearing for the accused filed memo of appearance and witness was tendered for cross-examinationbut was not cross-examinedby the counsel. Thus, proper opportunitywas given to the accused for the cross-examination. In view of these facts, since the accused did not avail the right to cross-examine, the same was closed and the applicationofthe Petitionerseekingrecallingof the witnesswas dismissed. I have heard learned counsel for the parties. A perusal of the certifiedcopy of the order sheet filed by the learned counselfor the Respondentshowsthat the matterwas listedon 3^^ October, 2009 when both the accused persons were present on bail along with their CRL.M.C. 870/2011 page 2 of 5 counsels.Evidence by way of affidavit of the Complainantwas filed and the copy of the evidencewas suppliedto the accused. The case was thereafter fixed for November, 2009 for the complainant's evidence however, on 21®*^ November, 2009 both the accused persons were present and so were the Complainantand their authorizedrepresentative. However,the case had to be adjournedto 26^^ March, 2010 as the learnedPresidingOfficerwas on leave. On 26^ March, 2010 both the parties were present, that is, the Complainantand the accusedpersonwerepresenthowever,the counselsfor both the parties were not available and thus, the complainant's evidence could not be conducted. On 20^*" December, 2010 the application for exemptionfrom personal appearanceof the accused was dismissed as the proxy counsel was not authorizedto appear on behalf of the complainant. On pass over the memo of appearancewas filed. The counselwas askedto cross-examine however he could not to do so as he was not ready. Thus the witness was discharged. On 22^"^ February, 2011 the application for recallingthe witness was dismissedvide the impugnedorder. Thus, 20^*^ December, 2010 was the first date when the accused had moved an application for exemption from personal appearance through proxy counsel CRL.M.C. 870/2011 page 3 of 5 and it was also pointedthat the learned counsel for the accused was not presentbecauseofpersonaldifficultyand the learnedproxycounselwas not preparedfor the cross-examination.However,learnedTrial Court gave no furtheropportunityand closedthe crossexamination. The learnedtrial Court has dismissedthe applicationfor recallingof the witnesses in view of the decision of the Hon'ble Supreme Court in HanumanRam v. StateofRajasthan,2008 (15) SCC652. Theirlordshipsin the said decisionwere dealingwith a case where the witnesseshad already been cross-examinedonce and further an applicationwas moved by the counselfor the Appellantfor recallingofwitnessesin orderto confrontthem with their previousstatements. Hence, the order of recallingof witnesses passedby the HighCourtwas set aside observingthat sufficientopportunity had alreadybeen grantedto the Appellantswhen they were cross-examined for the firsttime. However,in the case at hand, the witnesseshave not been cross-examinedeven once, due to the fact that the learned counsel for the accused was not available and the learnedproxy counsel was not ready for the cross-examination. Thus, the Petitioners were not granted sufficient opportunityto cross-examinethe witnesses. In the facts and circumstances of the case, I deem it fit to set aside the CRL.M.C. 870/2011 page 4 of5 4 7 impugnedorderdated22"'^February,2011 passedby the learnedTrialCourt. The complaintis now fixed for 2"'^ July, 2011 when the accused will be granted opportunityto cross-examinethe complainant'switnesses and no furtheropportunitywill be grantedexceptif the adjournmenthasto be given for the reason not related to the accused persons or for some unforeseen circumstance. Petitionand the pendingapplicationare disposedof. Orderdasti. MUKTA GUPTA, J. MAY 24,2011/vn CRL.M.C. 870/2011 page 5 of5