Criminal Misc. No. M- 7413 of 2011 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No. M- 7413 of 2011 Date of decision:- 24.3.2011 Sh. Sanjay Gupta ...Petitioner Versus State of Haryana and another ...Respondents CORAM: HON'BLE MS. JUSTICE RITU BAHRI Present:- Mr. Kunal Dawar, Advocate for the petitioner. RITU BAHRI J. Challenge in this petition is to the order dated 15.2.2011 whereby an application under Section 311 Cr.P.C. for recalling PW1 Poonam Gupta and PW2 Sanjay Aggarwal for further cross-examination has been dismissed. The marriage between petitioner and respondent No.2 was solemnized on 06.3.2002. An FIR No.871 dated 08.12.2002 under Sections 498- A,406,506,323 IPC read with Section 34 IPC, was registered at Police Station Sadar, Gurgaon against the petitioner Sanjay Gupta (husband), Vikas, Anuj (brother-in-laws), Jagdish and Smt. Pushpa (father-in-law and mother-in-law) respectively. After presentation of the challan, charges were framed by the trial Court. PW-1 (Poonam Gupta) complainant was examined on 23.8.2005 and PW2 Sanjay Aggarwal was examined on 12.9.2006. Mr. Kunal Dawar, Advocate, counsel for the petitioner has argued that there were some important questions, which could not be put to the abovesaid witnesses at the time of cross- examination. They have specifically stated that Rs.8,00,000/- were spent on the marriage, Rs.2,00,000/- were given in cash besides 30 tolas gold, TV, Fridge, Criminal Misc. No. M- 7413 of 2011 -2- Washing Machine, Furniture, Utensils etc. were given. Counsel for the petitioner vehemently argued that specific sources of income, receipts of the articles purchased and given in dowry and specific query from PW1 in relation to her employment in Divine Medical Centre at 6-7 local shopping Centre, Trilokpuri, Delhi could not be put forward due to oversight of the counsel for the petitioner. After going through the entire case this Court is of the view that the points on which the cross-examination is being sought from these two witnesses after a gap of almost four years when they had been examined and cross- examined thoroughly does not appear to be essential for the just decision of the case. As per the contents of the allegations mentioned in the FIR, which was registered on 08.12.2002, it was stated that Rs.8,00,000/- had been spent on marriage, 30 tolas Gold, TV,Washing Machine, Fridge, whole Furniture, Clothes, Utensils and Rs.2,00,000/- in cash had been given. Her husband was given one gold chain, one wrist watch Sonata, one gold ring, Ginni, clothes separately. List of articles given to other relations has also been mentioned with the FIR. PW1- Poonam Gupta- complainant and PW2 Sanjay Aggarwal (brother of complainant) have made the same statements in the examination-in-chief and in cross- examination they have not denied this fact. The petitioner had the opportunity to deny the entrustment of dowry articles in his reply and statement. By recalling them and finding out the source of income for giving such dowry articles in the given circumstance did not cause any injustice to the petitioner. The allegations in the FIR is that despite giving and spending good gifts in the marriage her in-laws were not satisfied. The inquiry as to whether PW1 was working in a shopping center will not affect the allegations levelled against the petitioners under Sections 406,498-A,506 and 323 IPC read with Section 34 IPC. Production of the receipts of money spent during marriage and the fact that the respondent No.2 was working in a shopping mall did not connect with the Criminal Misc. No. M- 7413 of 2011 -3- allegations made out in the FIR. Counsel for the petitioner in support of his submissions placed reliance on the judgment of Hon'ble Supreme Court in case Rajendra Prasad versus The Narcotic Cell through its Officer-in-charge, Delhi 1999(3) RCR (Criminal) 440. It is well settled that under Section 311 Cr.P.C. preliminary and wide powers have been given to the trial Court to adduce any evidence essential to the just decision of the case. In order to appreciate the controversy, it will be necessary to make a reference to Section 311 of the Code of Criminal Procedure, which reads as under:- “311. Power to summon material witness, or examine person present. Any court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person its a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case.” The aforementioned rules of the Hon'ble Supreme Court have been followed in cases Ganesh Roy versus State of Jharkhand and another 2007(5) RCR (Criminal) 346 and Manjit Kaur and others versus State of Punjab 2005 Crl.L.J. 1273. In the facts of the present case, the petitioner has not denied that they had received the gifts given at the time of marriage by the family of respondent No.2-Poonam Gupta. An attempt is being made to collect the evidence of receipts of expenditure done in the marriage. The Supreme Court in Rajendra Prasad versus The Narcotic Cell through its Officer-in- charge, Delhi's case (supra) has observed as under:- “A lacuna in prosecution is not to be equated with the fallout of an oversight committed by a public prosecutor during trial, either in producing relevant materials or in eliciting relevant answers from Criminal Misc. No. M- 7413 of 2011 -4- witnesses. The adage 'to error in human' is the recognition of the possibility of making mistakes to which humans are prone. A corollary of any such laches or mistakes during the conducting of a case cannot be understood as the lacuna which a court cannot fill up.” In the present case, it cannot be said that the queries, which the petitioner is seeking to make by recalling the witnesses was due to an oversight committed by the counsel. This is a case where the witnesses have been recalled to delay the proceedings of the case and if they are not recalled, it will not effect the just decision of the case. In view of the above observation, the criminal miscellaneous petition is hereby dismissed. 24.3.2011 ( RITU BAHRI ) Vijay Asija JUDGE