IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No. M-19592 of 2008 (O&M) Date of decision: 1st May, 2009 Central Bureau of Investigation … Petitioner Versus O.P. Katyal and others … Respondents CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Sukhdeep Singh Sandhu, Standing Counsel, CBI, for the petitioner. Mr. Vibhav Jain, Advocate for Mr. Punit Bali, Advocate for respondents No.1, 3 and 4. Mr. D.S. Chhillar, Advocate for respondent No.2. KANWALJIT SINGH AHLUWALIA, J. (ORAL) Criminal Misc. No.21601 of 2009 Application is allowed. Written statement on behalf of respondents No. 1, 3 and 4 is taken on record. Criminal Misc. No. M-19592 of 2008 Present petition has been filed by Central Bureau of Investigation under Section 482 Cr.P.C. for setting aside order dated 24th January, 2008 (Annexure P-1), whereby evidence of the prosecution was closed. In the present petition, order dated 26th May, 2008 (Annexure P-2) is also assailed, wherein request of the CBI to examine those very two witnesses, for whose examination evidence was closed, was rejected. Third order challenged by the CBI is order dated 3rd June, 2008, whereby Criminal Misc. No. M-19592 of 2008 (O&M) another application under Section 311 Cr.P.C. for examining another witness was rejected. These all orders were made subject matter of two Criminal Revisions before the Court of Additional Sessions Judge, Ambala. Criminal Revision No.73 of 2008 and 74 of 2008 were filed. This Court, taking into consideration long pendency of the trial and the fact that respondents have suffered a protracted trial, was hesitant to entertain the present petition. However, Mr. Sukhdeep Singh Sandhu, appearing for the CBI has stated that only two witnesses were to be examined, when evidence was closed by the trial Court. Mr. Sandhu has further submitted that the prosecution had cited 29 witnesses, out of which 12 have been examined, 10 have died during course of trial and other witnesses were given up. Mr. Vibhav Jain appearing for the accused respondent has stated that these two witnesses were not cited in the list of witnesses and a subsequent application was given that these two witnesses are required to be examined. Mr. Sukhdeep Singh Sandhu appearing for the CBI has regretted that instead of filing separate petitions assailing impugned orders passed in two Criminal Revisions, only one petition has been filed in this Court. He has stated that due to paucity of time, order closing evidence and separate orders passed on two applications under Section 311 Cr.P.C. have not been challenged. In the present case, CBI has not acted with due diligence, as there are many lapses on the part of Investigating Agency. They have been casual in their approach. Once, the trial Court had closed the evidence, to circumvent the order of closing the evidence, for the same cause of action, on another date, application for summoning those very witnesses as Court witnesses was filed. After the application was rejected, 2 Criminal Misc. No. M-19592 of 2008 (O&M) two revision petitions were filed, knowing fully well that order closing the evidence and rejecting the application filed under Section 311 Cr.P.C. is an interlocutory order. Revision petition was filed before Sessions Court, Ambala, which was disposed off by two separate orders (Annexure P-4 and P-5) dated 23rd July, 2008. It was expected that impugned orders in the two revision petition should have been separately challenged before this Court. All the three impugned orders passed by the trial Court should have been assailed by filing different petitions, as this is one of the objections, which has been raised by Mr.Vibhav Jain, appearing for the accused respondent. Since, the CBI has wasted a lot of time by repeating the same prayer before the trial Court by filing application under Section 311 Cr.P.C. and then approaching the revisional Court, which had no jurisdiction, I am of the view that if on this technicality, this petition is thrown, again a lot of time will be wasted to the advantage of none. Therefore, objections raised by Mr.Vibhav Jain is not accepted. In the present case, case was registered in year 1991. Chargesheet was presented in May 1993. Accused respondents are facing trial from last 18 years. Admittedly, right of speedy trial under Article 21 of the Constitution of India vest in them. Trial Court has rightly exercised discretion and closed the evidence on the ground that CBI has availed countless opportunities to lead evidence but had failed to examine the witnesses. Trial Court was also concerned that present case in the trial Court was the oldest case and was being adjourned by giving undue accommodation to the CBI. Even though, two witnesses, sought to be examined, were not cited as witnesses in the list of witnesses and their names were given to the trial Court in a subsequent list of witnesses, this Court is of the opinion that a balanced view is to be formulated and neither the prosecution should 3 Criminal Misc. No. M-19592 of 2008 (O&M) be put to disadvantage, nor the accused should suffer agony of the protracted trial. Protracted trial of eighteen years, will not disentitle the CBI from one effective opportunity. Thus, following directions are issued: (a) It is stated that next date of hearing is 26th May, 2009. On that date, CBI at its own risk and endeavour, shall examine two witnesses. The names of the witnesses are Mr.R.Rozama, then official of Excise Department, Govt. of Mizoram and an official from the office of Deputy Excise and Taxation Commissioner, Haryana. (b) That the entire deposition of these two witnesses will be concluded on 26th May, 2009 and thereafter no adjournment shall be granted in favour of the prosecution. (c) In case above said two witnesses do not appear on 26th May, 2009, the trial Court will proceed ahead with the matter. (d) It has been stated that statement of the accused under Section 313 Cr.P.C. has already been recorded and case is fixed for arguments. If necessary, trial Court may record additional statement of the accused under Section 313 Cr.P.C. or the said statement may be recorded afresh. (e) Mr. Vibhav Jain has stated that in case prayer of the CBI is to be accepted, then heavy cost should be imposed. It has been submitted that when similar indulgence is granted to accused, then Court normally awards cost. However, taking into consideration that CBI is a Govt. organization and cost awarded will burden the public exchequer, no cost is being awarded. Mr. Vibhav Jain has stated that CBI should be fastened with the cost and the amount should be deducted from the salary of the persons, as it was due to the lapse on the part of officers that delay has occurred. I am of the view 4 Criminal Misc. No. M-19592 of 2008 (O&M) that in this case, officers may not have taken trial in right earnest due to their occupation in various cases. But it cannot be said that delay was due to malafide reasons. It has been stated by counsel for the respondents that all the accused respondents are aged about 70 years, therefore their personal appearance before the trial Court may be exempted. Taking into consideration that case pertains to year 1991, personal appearance of the accused respondents before the trial Court is exempted, subject to their filing an undertaking that they shall cause their appearance as and when required by the trial Court. They shall also file an undertaking that the evidence, if any, recorded in their absence but in the presence of their counsel, shall be binding upon them. The trial Court may incorporate any other conditions in the undertaking to be submitted by the accused. At this stage, counsel for the CBI has stated that since witnesses are to be examined on 26th May, 2009, copy of this order may be handed over to him, under the signatures of Reader of this Court. Request of counsel for the CBI is accepted. With these observations, present petition is accepted in above terms. [KANWALJIT SINGH AHLUWALIA] JUDGE May 1, 2009 rps 5