Shrafat Sethi and another v. State of Haryana State of Haryana
Case Details
IN THE HIGH COURT OF PUNJAB & HARYANA IN THE HIGH COURT OF PUNJAB & HARYANA IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH AT CHANDIGARH 124 CRM-M-49168 49168-2025(O&M) Date of decision: 04.09.2025 Date of decision: Shrafat Ali @ Shrafat Sethi and another Shrafat Ali @ Shrafat Sethi and another ...Petitioners VERSUS State of Haryana State of Haryana ...Respondent CORAM : HON'BLE MR. JUSTICE VINOD S. BHARDWAJ HON'BLE MR. JUSTICE VINOD S. BHARDWAJ Present :- Mr. r. Vimal Kumar Gupta, Advocate Advocate, for the petitioners. VINOD S. BHARDWAJ, J. (Oral) VINOD S. BHARDWAJ ***** The present petition has been filed under Section 528 of The present petition has been filed under Section 528 of The present petition has been filed under Section 528 of for quashing of impugned order Bharatiya Nagarik Suraksha Sanhita, 2023 for quashing of impugned order Bharatiya Nagarik Suraksha Sanhita, 2023 2) passed by the learned Additional Sessions dated 02.08.2025 (Annexure P-2) passed by the learned Additional Sessions dated 02.08.2025 (Annexure P Judge, Kurukshetra in Sessions Case No. 12 of 2020 in FIR No. 134 dated Judge, Kurukshetra in Sessions Case No. 12 of 202 Judge, Kurukshetra in Sessions Case No. 12 of 202 03.05.2019, registered A, 387, 201 IPC and Sections 25, registered under Sections 364-A, 387, 201 IPC and Sections 25, 54 and 59 of the Arms Act Police Station Ladwa, District Kurukshetra 59 of the Arms Act at Police Station Ladwa, District Kurukshetra 1), whereby the application filed by the petitioners for recalling 1), whereby the application filed by the petitioner (Annexure P-1), whereby the application filed by the petitioner of the witnesses was dismissed esses was dismissed. 2. Learned counsel appearing on behalf of Learned counsel appearing on behalf of Learned counsel appearing on behalf of the petitioners the petitioners the petitioners been nominated as accused in vehemently contends that the petitioners have been nominated as accused in vehemently contends that the
Legal Reasoning
has been registered on the complaint of one Kapil the aforesaid FIR, which has been registered on the complaint of one Kapil the aforesaid FIR Garg. He contends that the petitioners had Garg. He contends that th moved an application for recalling the witnesses namely PW-21 Vinod Kumar, PW recalling the witnesses namely PW 1 Vinod Kumar, PW-3 SI Vijay Kumar, 2 Rohit Kumar, Nodal Officer, Bharti Airtel Limited and PW-13 2 Rohit Kumar, Nodal Officer, Bharti Airtel Limited and PW PW-2 Rohit Kumar, Nodal Officer, Bharti Airtel Limited and PW Sandeep Sharma, Nodal Officer, Reliance Jio on the ground that the said Sandeep Sharma, Nodal Officer, Reliance Jio on the gr Sandeep Sharma, Nodal Officer, Reliance Jio on the gr e required to be recalled as they were to be cross-examined for e required to be recalled as they were to be cross witnesses were required to be recalled as they were to be cross SUMIT SINGH GUSAIN 2025.09.10 17:24 I attest to the accuracy and integrity of this document 124 CRM-M-49168 49168-2025(O&M) 2 bringing certain material facts for proper adjudication. The Trial Court bringing certain material facts for proper adjudication. The bringing certain material facts for proper adjudication. The said application vide the impugned order while recording as dismissed the said application vide the impugned order while recording as said application vide the impugned order while recording as under:- “4.After hearing learned Publ ic Prosecutor for State and After hearing learned Public Prosecutor for State and learned counsel for both the parties and perusing the record learned counsel for both the parties and perusing the record learned counsel for both the parties and perusing the record carefully, I have reached to a conclusion that the application carefully, I have reached to a conclusion that the application carefully, I have reached to a conclusion that the application in hand is without any merits. in hand is without any merits. It transpires that through the present application, It transpires that through the present application, applicants/accused want to recall the witnesses of the the applicants/accused want to recall the witnesses of the the examination. However, in the prosecution for further cross-examination. However, in the prosecution for further cross application it is no where mentioned as to on what specific application it is no where mentioned as to on what specific application it is no where mentioned as to on what specific points the defence wants to cross-examine the witnesses points the defence wants to cross points the defence wants to cross erusal of record shows that SI Vijay sought to be recalled. A perusal of record shows that SI Vijay sought to be recalled. A p Kumar No.1115/KKR has been examined as PW3 on Kumar No.1115/KKR has been examined as PW3 on Kumar No.1115/KKR has been examined as PW3 on 26.07.2021. Rohit Kumar, Nodal Officer, Bharti Airtel 26.07.2021. Rohit Kumar, Nodal Officer, Bharti Airtel 26.07.2021. Rohit Kumar, Nodal Officer, Bharti Airtel Limited has been examined as PW12 on 14.10.2021 and Limited has been examined as PW12 on 14.10.2021 and Limited has been examined as PW12 on 14.10.2021 and Sandeep Sharma, Nodal Officer, Reliance Jio has been Sandeep Sharma, Nodal Officer, Reliance Jio has been Sandeep Sharma, Nodal Officer, Reliance Jio has been 13 on 10.12.2021. The prosecution witness examined as PW13 on 10.12.2021. The prosecution witness examined as PW namely Vinod Kumar Garg has been examined as PW21 on namely Vinod Kumar Garg has been examined as PW21 on namely Vinod Kumar Garg has been examined as PW21 on 19.03.2025. All the prosecution witnesses were cross- 19.03.2025. All the prosecution witnesses were cross 19.03.2025. All the prosecution witnesses were cross examined at length by learned defence counsel. Thereafter, examined at length by learned defence counsel. Thereafter, examined at length by learned defence counsel. Thereafter, the statements of accused under Section 313 Cr.P.C. have the statements of accused under Section 313 Cr.P. the statements of accused under Section 313 Cr.P. already been recorded and case is fixed fordefence evidence. already been recorded and case is fixed for already been recorded and case is fixed for Even in defence evidence the accused have already examined Even in defence evidence the accused have already examined Even in defence evidence the accused have already examined two witnesses Yashpal Singh, Criminal Ahlmad as DW1 and two witnesses Yashpal Singh, Criminal Ahlmad as DW1 and two witnesses Yashpal Singh, Criminal Ahlmad as DW1 and SUMIT SINGH GUSAIN 2025.09.10 17:24 I attest to the accuracy and integrity of this document 124 CRM-M-49168 49168-2025(O&M) 3 Anil Kumar, Driver as DW2. Hence, the application in hand Anil Kumar, Driver as DW2. Hence, the application in hand Anil Kumar, Driver as DW2. Hence, the application in hand just to delay the trial. The trial of the case is at has been filed just to delay the trial. The trial of the case is at has been filed the final stage and if the witnesses are recalled it shall not the final stage and if the witnesses are recalled it shall not the final stage and if the witnesses are recalled it shall not only cause harassment to the witnesses but shall also delay only cause harassment to the witnesses but shall also delay only cause harassment to the witnesses but shall also delay the trial further. There is no dispute about the ratio of law the trial further. There is no dispute about the ratio of law the trial further. There is no dispute about the ratio of law orities relied upon by learned defence laid down in authorities relied upon by learned defence laid down in auth counsel, but with due respect the same are not applicable to counsel, but with due respect the same are not applicable to counsel, but with due respect the same are not applicable to the facts of this case being based on distinguishable facts as the facts of this case being based on distinguishable facts as the facts of this case being based on distinguishable facts as discussed above. discussed above. Accordingly, keeping in view the facts and circumstances of 5.Accordingly, keeping in view the facts and circumstances of Accordingly, keeping in view the facts and circumstances of application in hand is hereby dismissed. the case, the application in hand is hereby dismissed. the case, the Needless to say that anything said or observed in this order is Needless to say that anything said or observed in this order is Needless to say that anything said or observed in this order is for deciding the present application and shall not affect the for deciding the present application and shall not affect the for deciding the present application and shall not affect the merits of the case.” merits of the case.” 3. In tune with the reasons recorded by the respondent, learned In tune with the reasons recorded by the respondent, In tune with the reasons recorded by the respondent, counsel for the contends that the prosecution has connected the unsel for the petitioners contends that the prosecution has connected the petitioners with accused in the present case by way of CDRs. He with the co-accused in the present case by way of CDRs. He contends that a CDR is evidence only to establish the time contends that a CDR is evidence y to establish the timestamps of a mobile phone and does not demonstrate the exact positioning mobile phone and exact positioning or location of the mobile phone at the time of the occurrence. For the said purpose, a phone user at the time of the occurrence. For the said purpose, a decoding register is required to be produced. The same being a crucial piece decoding register is required to be produced. The same being decoding register is required to be produced. The same being of evidence, is required to be put to is required to be put to the witnesses who appeared the witnesses who appeared before the . He contends that since the object of Section 311 Cr.P.C. is to ensure Court. He contends that since the object of Section 311 Cr.P.C. is to ensure . He contends that since the object of Section 311 Cr.P.C. is to ensure that the ends of met, hence, it was essential for the Trial Court to ends of justice are met, hence, it was essential for the Trial Court to have examined the said aspect and recall of the witnesses so that ined the said aspect and allowed the recall of the witnesses so that SUMIT SINGH GUSAIN 2025.09.10 17:24 I attest to the accuracy and integrity of this document 124 CRM-M-49168 49168-2025(O&M) the said aspect could have been brought on record. could have been brought on record. 4 4. I have heard learned counsel appearing on behalf of the I have heard learned counsel appearing on behalf of the I have heard learned counsel appearing on behalf of the petitioners and have gone through the documents appended along with the petitioners and have gone through the documents appended along with the petitioners and have gone through the documents appended along with the present petition as well as the contents of the application moved by the present petition as well as the contents of the application moved by the present petition as well as the contents of the application moved by the petitioners before the Trial Court, a copy whereof has been handed over petitioners before the Trial Court, a copy whereof petitioners before the Trial Court, a copy whereof Court. The same is taken on record as ‘Mark A’. A perusal of Court. The same is taken on record as today in the Court. The same is taken on record as assigned by the petitioners in the the same shows that no reason has been assigned by the petitioners in the the same shows that no reason tnesses are required to be recalled for said application as to why these witnesses are required to be recalled for said application as to why these wi examination. The same has also been recorded by the Trial Court, cross-examination. The same has also been recorded by the Trial Court examination. The same has also been recorded by the Trial Court while declining the said application. while declining the said application. 5.
Legal Reasoning
Further, the contention of the learned counsel for the Further, learned counsel for the petitioners that a CDR is not a proof of the user’s location, is that a CDR is not a proof of the location, is a ground even otherwise and a person who has been examined by the available to the petitioners and a person who has been examined by the available to the prosecution solely to testify with respect to the CDR would not be deemed prosecution solely to testify with respect to the CDR would not be deemed prosecution solely to testify with respect to the CDR would not be deemed as a person who is an expert in relation to the scope of CDR and as to as a person who is an expert in relation to the scope of CDR and as t as a person who is an expert in relation to the scope of CDR and as t whether it is a proof good enough for determining the area of usage or whether it is a proof good enough for determining the area of usage or whether it is a proof good enough for determining the area of usage or A person can be questioned only with respect to the location of an accused. A person can be questioned only with respect to the location of an accused. document which has been produced by him/her. The scope of the document document which has been produced by him/her. The scope of the document document which has been produced by him/her. The scope of the document in law, is not based upon any other and its scope of evidentiary value, in law, is not based upon any other and its scope of evidentiary value, document. The witnesses having produced certain document can testify only document. The witnesses having produced certain document can document. The witnesses having produced certain document can with respect to the said document and not with respect to any other with respect to the said document and not with respect to any other with respect to the said document and not with respect to any other document that is neither on record nor produced/relied upon by them. The document that is neither on record nor produced/relied upon by them. document that is neither on record nor produced/relied upon by them. petitioners have evidence in their defence and establish have every right to lead evidence in their defence and establish their claim by referring to law. Even though he their claim by referring to law he has placed reliance on the judgment passed by the Hon’ble Supreme Court in Criminal Appeal No. passed by the Hon’ble Supreme Court in Criminal Appeal No. SUMIT SINGH GUSAIN 2025.09.10 17:24 I attest to the accuracy and integrity of this document 124 CRM-M-49168 49168-2025(O&M) 5 2 decided on 08.08.2022 titled 1021 of 2022 with MA No. 1144 of 2022 decided on 08.08.2022 titled 1021 of 2022 with MA No. 1144 of 202 “Varsha Garg Vs. The State of Madhya Pradesh & Ors.”to contend that a “Varsha Garg Vs. The State of Madhya Pradesh & Ors.” “Varsha Garg Vs. The State of Madhya Pradesh & Ors.” decoding register is a crucial and vital piece of evidence and is thus required decoding register is a crucial and vital piece of evidence and is thus required decoding register is a crucial and vital piece of evidence and is thus required for just decision of the case, however, the said judgment was for just decision of the case, however, the said judgment wa to be produced for just decision of the case, however, the said judgment wa rendered in a converse situation. rendered in a converse situation. 6. The said judgment has been cited before The before this Court while being of the same. The same would not advance the oblivious of the application of the same. The same would not advance the oblivious of the cause of the petitioners petitioners insofar as their contention about contention about the requirement to recall the witness the witnesses is concerned. In the said case concerned. In the said case, the prosecution witnesses were confronted that CDR is not sufficient to establish location, hence, the were confronted that CDR is not sufficient to establish location, hence, the were confronted that CDR is not sufficient to establish location, hence, the itself intended to produce the decoding register as evidence in itself intended to produce the decoding register prosecution itself intended to produce the decoding register . The Supreme Court allowed the prosecution to order to further its case. The Supreme Court allowed the prosecution to order to further its case produce the said evidence for just and proper adjudication. In the present produce the said evidence for just and proper adjudication. In the present produce the said evidence for just and proper adjudication. In the present case, the petitioners petitioners do not want to adduce the the record pertaining to the decoding register, however, they want to recall decoding register, however, to recall the witnesses to cross- examine them in relation to aspects that they may not be privy to. Further, examine them in relation to aspects that they may not be privy to. Further, examine them in relation to aspects that they may not be privy to. Further, there is nothing on record in the testimony that has been brought before this there is nothing on record in the testimony that has been brought before this there is nothing on record in the testimony that has been brought before this Court that the said witnesses have in any manner deposed in the Court that the said witnesses have in any manner deposed in the Court that the said witnesses have in any manner deposed in the Examination-in- Chief to the effect that the CDR is proof of the location of a -Chief to the effect that the CDR is proof of the person and no cross no cross-examination was ever done was ever done on any of the aspects by the petitioners despite despite an opportunity having been granted. opportunity having been granted. In the absence of the tively with respect to the location of said witnesses having testified affirmatively with respect to the location of said witnesses having testified affirma the petitioner on the basis of CDR and in the absence of the decoding the petitioner on the basis of CDR and in the absence of the decoding the petitioner on the basis of CDR and in the absence of the decoding register, the petitioner is always at liberty to impeach the admissibility of the register, the petitioner is always at liberty to impeach the admissibility of the register, the petitioner is always at liberty to impeach the admissibility of the evidence to such extent by referring to the position in law as explained by evidence to such extent by referring to the position in law as ex evidence to such extent by referring to the position in law as ex SUMIT SINGH GUSAIN 2025.09.10 17:24 I attest to the accuracy and integrity of this document 124 CRM-M-49168 49168-2025(O&M) the Supreme Court of India. the Supreme Court of India. 6 7. The Hon’ble Supreme Court in the matter of ‘Ratanlal vs The Hon’ble Supreme Court in the matter of ‘ The Hon’ble Supreme Court in the matter of ‘ Prahlad Jat and others’ reported as 2017 (9) SCC 340 Prahlad Jat and others 2017 (9) SCC 340 culled out the circumstances in which a judicial discretion could be exercised under circumstances in which a judicial discretion could be exercised under circumstances in which a judicial discretion could be exercised under Section 311 of CrPC. The relevant paras thereof read Section 311 of Cr The relevant paras thereof read as under:- “17. In order to enable the court to find out the truth and 17. In order to enable the court to find out the truth and render a just decision, the salutary provisions of Section 311 render a just decision, the salutary provisions of Section 311 render a just decision, the salutary provisions of Section 311 are enacted whereunder any court by exercising are enacted whereunder any court by exercising are enacted whereunder any court by exercising its its its discretionary authority at any stage of inquiry, trial or other discretionary authority at any stag discretionary authority at any stag proceeding can summon any person as witness or examine any proceeding can summon any person as witness or examine any proceeding can summon any person as witness or examine any person in attendance though not summoned as a witness or person in attendance though not summoned as a witness or person in attendance though not summoned as a witness or examine any person already examined who are recall or re-examine any person already examined who are recall or re expected to be able to throw light upon the matter in dispute. expected to be able to throw light upon the matter in expected to be able to throw light upon the matter in The object of the provision as a whole is to do justice not only The object of the provision as a whole is to do justice not only The object of the provision as a whole is to do justice not only from the point of view of the accused and the prosecution but from the point of view of the accused and the prosecution but from the point of view of the accused and the prosecution but also from the point of view of an orderly society. This power is also from the point of view of an orderly society. also from the point of view of an orderly society. to be exercised only for strong and valid reasons and it should to be exercised only for strong and valid reasons and to be exercised only for strong and valid reasons and be exercised with caution and circumspection. Recall is not a be exercised with caution and circumspection. Recall is not a be exercised with caution and circumspection. Recall is not a matter of course and the discretion given to the court has to be matter of course and the discretion given to the court has to be matter of course and the discretion given to the court has to be exercised judicially to prevent failure of justice. Therefore, the exercised judicially to prevent failure of justice. Therefore, the exercised judicially to prevent failure of justice. Therefore, the reasons for exercising this power should be spelt out in the reasons for exercising this power should be spelt ou reasons for exercising this power should be spelt ou order. order.