Mr. Harmet Singh Gulati Mr. Anchit Sangwan, Advocates v. THE STATE OF NCT OF DELHI

Judgment

1. Petition herein is directed against two orders dated 11.07.2025 and

18.07.2025 passed by the Learned ACJM, Shahdara, Karkardooma Courts, Delhi, in criminal proceedings arising from FIR No. 310/2010, PS Anand Vihar, under Sections 323/325/341/506/509/34 of the IPC, whereby two applications, both under section 311 of the Cr.P.C. (348 of BNSS) filed one after the other in a short span of one week.

2. Aggrieved against both the above impugned orders, petitioner (an accused and under trial) pleads that has been falsely implicated. He has committed no offence as alleged by the complainant in the ongoing trial. After framing of the charges, the examination-in-chief of PW-1 Dr. B.K. Signature Not Verified Signed By:RENUKA NEGI Signing Date:05.08.2025 06:39:46 CRL.M.C. 4938/2025 Gupta was recorded on 14.08.2013 and his cross-examination was deferred on the request of the defence counsel as he wanted to cross-examine PW-1 Dr. B.K. Gupta and his son PW-2 Dr. Mohit Gupta (complainant) together. On the next date of hearing i.e. 30.10.2013, PW-2 Dr. Mohit Gupta was called and his examination-in-chief was recorded. He was then partly but extensively cross-examined, and his further cross-examination was deferred to 23.07.2014. On 23.07.2014, he was further cross-examined and the matter was again deferred to 25.02.2015. On 25.02.2015, both PW-1 Dr.B.K. Gupta and PW-2 Dr. Mohit Gupta were present, but the petitioner’s counsel was engaged in a bail matter in Rohini Court. His proxy counsel requested the Ld. Predecessor to adjourn the matter for their cross-examination, but the request was declined and the opportunity for cross-examination was marked 'Nil'.

2.1. Thereafter, the petitioner moved an application under Section 311 Cr.P.C. for recalling both witnesses for cross-examination. However, due to a typographical error in the application, only PW-1 Dr. Mohit Gupta was mentioned instead of PW-1 Dr. B.K. Gupta and PW-2 Dr. Mohit Gupta. The petitioner's counsel requested the Ld. Predecessor to recall both witnesses, and the application was allowed, but inadvertently the order sheet mentioned only PW-1 Dr. Mohit Gupta instead of PW-1 Dr. B.K. Gupta and PW-2 Dr. Mohit Gupta due to an error by the court steno. The counsel remained under the impression that the Hon’ble Trial Court had allowed the recall of both witnesses. Subsequently, the cross-examination of PW-2 Dr. Mohit Gupta was conducted on 08.07.2015, and other witnesses were cross-examined by the associate counsel, except PW-1 Dr. B.K. Gupta. The associate counsel Signature Not Verified Signed By:RENUKA NEGI Signing Date:05.08.2025 06:39:46 CRL.M.C. 4938/2025 was under the mistaken belief that both PW-1 and PW-2 had already been cross-examined. Thereafter, the statement of the accused and defence evidence were also conducted by the associate counsel.

2.2. At the time of final arguments, the petitioner’s counsel discovered that PW-1 had not been cross-examined while preparing the final submissions. Upon inspecting the judicial file, the counsel requested the Hon’ble Trial Court to recall PW-1 for cross-examination. However, the request was declined by the court vide order dated 11.07.2025, and the matter was listed for final arguments on 18.07.2025 as a last opportunity. On

18.07.2025, the petitioner again moved an application for recalling PW-1 Dr. B.K. Gupta, citing reasonable facts and relevant legal precedents, but this application was also dismissed by the Trial Court by order dated

18.07.2025.

4. Hence the instant petition. In the aforesaid backdrop I have heard learned counsel for the

petitioner and the learned APP and perused the trial court record.

5. Learned counsel for the petitioner would urge on the line of the grounds taken in the petition and argue that the Trial Court failed to exercise its judicial mind and dismissed both the applications against the petitioner without properly considering the facts and evidence on record. The petitioner provided valid reasons for failing to cross-examine PW-1, whose testimony is crucial to the prosecution’s case.

5.1. He would argue that the Trial Court overlooked that PW-1's cross- examination was initially deferred by the defence to examine PW-1 and PW-2 together. The Court failed to note that PW-2’s cross-examination was Signature Not Verified Signed By:RENUKA NEGI Signing Date:05.08.2025 06:39:46 CRL.M.C. 4938/2025 conducted over multiple dates, which was part of the defence strategy.

5.2. Furthermore, on 25.02.2015, the petitioner’s counsel was unavailable due to another case, and the proxy counsel’s request for adjournment was denied, resulting in loss of cross-examination opportunity.

5.3. Also, he would contend that the Court did not acknowledge the typographical error in the first Section 311 application and wrongly assumed PW-1 had been recalled. The defence associate counsel wrongly believed PW-1 had been cross-examined, leading to the completion of evidence without his cross-examination. On 16.12.2022, it was recorded that no further prosecution witnesses remained, reflecting the oversight regarding PW-1’s unexamined status. It was thus that the matter progressed to the accused’s statement, defence evidence, and final arguments without realization that PW-1 remained unexamined. The defence only realized the lapse while preparing for final arguments on 11.07.2025 and requested to recall PW-1, which was declined.

5.4. Thus, recalling PW-1 is necessary to ensure a fair and just decision of the case and the delay, if any, was due to a genuine misunderstanding and not an attempt to delay proceedings. Section 311 Cr.P.C. grants wide discretion to ensure justice, which the Trial Court failed to exercise appropriately. Section 311 should be exercised only when essential for justice; in this case, it is indeed essential. The applications filed by petitioner disclose compelling and exceptional reasons to recall PW-1.

5.5. Moreover, counsel for petitioner would argue that not allowing PW1’s recall prejudices the petitioner, as PW-1 was not cross-examined at all. The application under Section 311 discloses the necessity of recalling PW-1 for a Signature Not Verified Signed By:RENUKA NEGI Signing Date:05.08.2025 06:39:46 CRL.M.C. 4938/2025 fair decision but yet it was overlooked. The Trial Court, therefore, erred in rejecting the application without accounting for the prejudice caused to the petitioner. The impugned order lacks proper judicial reasoning and fails to assess the necessity of PW-1’s recall.

5.6. Finality of proceedings should not override the fact that PW1 has not been cross-examined even once. Denying the petitioner the opportunity to cross-examine PW-1 creates an imbalance and violates the right to fair trial.

5.7. He would cite various judgments including Vijay Kumar v. State of U.P.1; Zahira Habibullah Sheikh v. State of Gujarat2; State (NCT of Delhi) vs. Shiv Kumar Yadav3; Manju Devi v. State of Rajasthan4; Swapan Kumar Chatterjee vs. Central Bureau of Investigation5; Harendra Rai v. State of Bihar6 and Satbir Singh v. State of Haryana7 to urge that Section 311 ensures no failure of justice due to omission or error and in clearing ambiguities and maintaining fairness, at any stage, when essential for a just decision, regardless of long delay, if otherwise justified by facts.

6. Opposing the petition, learned APP would argue that no interference by this court is warranted and both the applications of the petitioner were rightly dismissed by the learned trial court for the reasons stated in the impugned orders which are self speaking and need no further explanation.

7. First and foremost let us see the two impugned orders which for ease of reference are extracted here in after.