TaxTMI 
TaxTMI 
2018 (11) TMI 185
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....fter, on the basis of the material brought on record, the petitioner was summoned. After appearing before the Trial Court, the petitioner had cross-examined the Complainant to rebut his claim. Thereafter the complainant/respondent moved an application under Section 311 Cr.P.C praying for examination of Bhupinder Singh Chakal as CW-2. The Complainant had thought fit to examine this Bhupinder Singh(CW-2) despite that his name was not mentioned in the list of witnesses mentioned with the Complaint. That application was allowed by the Trial Court. Resultantly, Bhupinder Singh (CW-2) was examined by Complainant as additional witness and crossexamined by the petitioner on 20.04.2018. On an application moved by the petitioner, copy of the examination and cross-examination of Bhupinder Singh(CW-2) was supplied to the petitioner. The case was adjourned for remaining evidence of the complainant for 09.05.2018. On 09.05.2018, the respondent had not produced any witness. Therefore, the evidence of the respondent/complainant was closed on his statement. The case was adjourned for recording of the statement of the petitioner under Section 313 Cr.P.C. On 14.05.2018 the statement of the petitio....
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....cant extent. He has taken only three dates; spanning over a period of about one month only. Hence it can not be said that the petitioner is responsible for delay in conclusion of the trial. Learned counsel for the petitioner has relied upon the judgment of the Hon'ble Supreme Court rendered in 2000(10)SCC 430; Hoffman Andreas versus Inspector of Customs, Amritsar to contend that even engagement of a new counsel can be a ground for allowing the application under Section 311 Cr.P.C if it is necessary for just decision of case. It is contended by the counsel that; in that case; the Hon'ble Supreme Court permitted the further cross-examination by the new counsel. While permitting so, the Hon'ble Supreme Court had also held that the opportunity to further cross-examine the witness, by allowing the application under Section 311 Cr.P.C., should have been allowed because courts have to afford opportunity to the accused to defend himself in a most fair possible manner. On the other hand, learned counsel for the respondent has submitted that earlier counsel for the petitioner had already cross-examined the complainant as well as Bhupinder Singh(CW-2), therefore, merely the cha....
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....ented on the next date and the evidence of the Complainant was closed that the petitioner had initiated the process of examining DW's and one defense witness, namely, DW-1;Mangat Singh was examined and crossexamined by the Complainant. Again at this stage, it was the Complainant himself who again moved an application under Section 311 Cr.P.C for introducing one more witness to rebut the DW-1 and support his own case. Resultantly, the Trial Court again had been liberal, and allowed the complainant to examine one more additional witness against the petitioner, despite the fact that such witness was, again, not named in the list of witnesses nor his relevance was disclosed in the Complaint; and earlier complainant himself had closed his evidence. Resultantly, Satender Singh (CW-3) was examined before the Court by the Complainant. Again, the case was adjourned for recording of the statement under Section 313 Cr.P.C. This statement of the petitioner under Section 313 Cr.P.C. was also recorded. However, at this stage, the petitioner realised that certain facts which has come up in the testimony of original witness and the additional witnesses, namely, Complainant(CW-1) and Bhupind....
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....accused and not by the Court, subject to of-course, to the relevance and propriety, which is to be considered by the Trial Court. Since upon further cross-examination of Complainant(CW-1) the further crossexamination of Bhupender Singh(CW-2) can also become relevant and necessary for just decision of the case, therefore, it is not desirable to leave the unnecessary scope for another application to be moved by the petitioner for his cross-examination again. So it would be justified and necessary also; that the matter of right of the accused to cross-examine the Complainant and his witnesses is decided in one go. Therefore, the petitioner deserves to be granted opportunity to further cross-examine both, the Complainant(CW-1) and Bhupinder Singh(CW-2). It deserves to be noted here that, otherwise also, the case is at the stage of defense evidence only. The accused has a right to adduce any evidence in his defence. There is no prohibition in statutory law to the effect that such defense evidence would not include further cross-examination of the complainant, who might have been earlier cross-examined at the stage of Prosecution evidence. This Court also finds substance in the argume....
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....y observed that the approach in such henious crime has to be different. In that case, the prosecutrix had already been cross-examined and the accused was found to be well aware of the procedure of trial because he was facing other cases of rape as well. As a result, in the facts and circumstances of that particular case, as involved in the case of State (NCT of Delhi)(supra) the Hon'ble Supreme Court has held the application under Section 311 Cr.P.C. to be not sustainable. The present case is clearly distinguishable from that case on its own facts. However, from harmonious reading of the above said judgments of the Hon'ble Supreme Court, cited by the counsel for the petitioner as well as cited by the counsel for the respondent, it is quite clear that it can not be an inflexible rule that if an application is moved on the ground of change of counsel; the same has to be necessarily dismissed in all cases. Rather it is the interest of justice and fairness of the procedure which has to be emphasised and which has to be given leverage to by the Court; while considering such an application. In view of the above facts and the legal proposition, this Court finds that the Complai....