STATE OF HARYANA v. Mr. T.P. Singh, Senior DAG, Haryana

CORAM:-HON'BLE MR. JUSTICE JASJIT SINGH BEDI Present: Mr. Pradeep Virk, Senior Advocate with Mr. Kamal Deep Sehra, Advocate and Ms. Ritu, Advocate for the petitioner. Mr. T.P. Singh, Senior DAG, Haryana. Mr. Balraj Gujjar, Advocate for the complainant. **** JASJIT SINGH BEDI ) , J.(ORAL

The prayer in the present petition is for setting aside the impugned order dated 16.02.2023 passed by the Additional Sessions Judge, Faridabad in case bearing No.233 of 2017, titled as Vijay and others vs. State of Haryana, whereby the application filed under Section 391 Cr.P.C. by the petitioner, who is a convict in FIR No.24 dated

12.01.2011 registered at Police Station Sector-55, Faridabad, under Sections 323, 392, 420, 467, 468, 471, 506 & 120-B of the IPC, has been dismissed.

The learned Senior Counsel for the petitioner/convict (hereinafter known as the petitioner) contends that when PW-10/Saleem S/o Hajru, was being cross-examined, a serious doubt regarding his identity has been created because Saleem has not brought on record any evidence to show that he is Saleem S/o Hajru, R/o Nawabgarh, Nuh, Mewat. Pursuant to the conviction of the petitioner, certain facts have CRR-730-2023 (O&M) 2 come to his knowledge because of which it would be essential to adduce evidence to create a doubt regarding the identity of Saleem. An application moved by the petitioner for the said purpose under Section 391 Cr.P.C., has been dismissed by the Court of the learned Additional Sessions Judge, Faridabad without due application of mind. Even, if the defence evidence and documents sought to be brought on record are permitted, the Public Prosecutor shall have the right to cross-examine the said witnesses. Therefore, in the interest of justice, the application dated

23.03.2017 (Annexure P-1) be allowed, and the evidence and documents be permitted to be brought on record.

The learned State counsel and the counsel for the complainant, on the other hand, contend that it has been conclusively established during the pendency of the present petition that PW-10/Saleem is also known as Aleem S/o Hajru, R/o Nawabgarh, Nuh, Mewat. Therefore, there is no dispute regarding the identity of the said Saleem. Pramod Nagar, Proprietor, Shiv Builders, who is mentioned at Point (a) in Para 6 of the application, was known to the petitioner and he ought to have been examined during the course of the trial. The evidence of the defence was closed on the statement made by the counsel for the petitioner himself. Therefore, the present petition is liable to be dismissed.

I have heard the learned counsel for the parties. Section 391 of the Cr.P.C. reads as under:-

391. Appellate Court may take further evidence or direct it to be taken.- CRR-730-2023 (O&M) 3 (1) In dealing with any appeal under this Chapter, the Appellate Court, if it thinks additional evidence to be necessary, shall record its reasons and may either take such evidence itself, or direct it to be taken by a Magistrate, or when the Appellate Court is a High Court, by a Court of Session or a Magistrate. (2) When the additional evidence is taken by the Court of Session or the Magistrate, it or he shall certify such evidence to the Appellate Court, and such Court shall thereupon proceed to dispose of the appeal. (3) The accused or his pleader shall have the right to be present when the additional evidence is taken. (4) The taking of evidence under this section shall be subject to the provisions of Chapter XXIII, as if it were an inquiry.

As per the aforementioned provision, the Appellate Court, may, if it finds it to be necessary permit the bringing on record of additional evidence.

In the instant case, a perusal of the cross-examination of PW-10/Saleem would reveal that an attempt has been made by the defence to dispute his identity as is apparent from pages 1 and 2 of his cross-examination. Therefore, once the identity of Saleem itself is disputed, it would be in the interest of justice, that the convicted accused be allowed to bring on record evidence to dispute the said identity. Needless to say, the Public Prosecutor would be entitled to cross-examine the witnesses sought to be examined by way of defence evidence and the Appellate Court shall then adjudicate upon the matter in accordance with law. CRR-730-2023 (O&M) 4

In view of the above, the impugned order dated 16.02.2023 is partially set aside. The petitioner is permitted to lead evidence as enumerated at Points (a), (c) and (d) of the application dated 23.03.2017, namely (a) Pramod Nagar, Proprietor, Shiv Builders, (c) the Officer, Election Commission, office at District Nuh with details of certified copies of voter list of Village Nawabgarh and (d) the Officer, Licensing Authority Nuh to prove that there was no licensing authority in Nuh in 2005, in accordance with law.

The entire proceedings of recording of evidence and cross- examination shall be concluded within 02 months from the next date fixed before the Appellate Court and the said Court shall thereafter proceed to conclude the hearing of the appeal within a further period of 01 month.

disposed of.

28.07.2026 Kusum Disposed of. All the pending miscellaneous applications, if any, stand (JASJIT SINGH BEDI) JUDGE Whether speaking/reasoned Whether reportable Yes/No Yes/No