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2007 DAILYLAW 2822 (DEL)

Sushil Ansal v. State

2007-09-21

Shiv Narayan Dhingra

body2007
ORDER :- This writ petition has been filed under Section 482, Cr.P.C. read with Section 227 of the Constitution of India for (i) quashing order dated 5th September, 2007 passed by the Additional Sessions Judge; (ii) to allow further oral arguments to be addressed by petitioners before trial Court; and (iii) to allow the petitioners to place their written submissions on record. 2. The brief facts necessary for consideration of this petition are that a case under Section 304-A/304/337/338/285/287/ 436/427, IPC (known as Uphaar Tragedy Case) was fixed for delivery of judgment on 5th September, 2007. The order passed by the trial Court on 21st August, 2007 reads as under : IN THE COURT OF MRS. MAMTA SEHGAL, ASJ, ND CBI v. Sushil Ansal etc. 21-8-2007 Present : Shri Saxena SPP for CBI All accused with their respective counsel Arguments on behalf of CBT concluded yesterday. Now to come up on 5-9-2007 for judgment Sd/-ASJ/ND/21-8-3007 On 5th September, 2007 an application made by the petitioners for filing written arguments was dismissed by the trial Court hence this petition. 3. It is submitted by the learned counsel for the petitioners that the order of the trial Court violated the principles of natural justice. The petitioners only wanted to place the written submissions (running into 335 typed pages) on record since, the evidence and the document in this case involved thousands of pages and it was not practically possible for the Judge to remember all the arguments advanced orally. It was also submitted that while oral arguments are addresssed by the parties, normally, the judge prepares her own notes for memory and notes down the points of arguments, however, the counsel for the accused do not have the advantage of looking into those notes or knowing the contents of those notes and therefore, it is not known to the accused, if the, notes reflect all the points raised or not. Placing written arguments on record, therefore, was to keep on record the points raised by the accused for the benefit of a fair decision. 4. The counsel also submitted that the learned trial Judge violated provisions of Section 234, Cr.P.C. He submitted that under Section 234, Cr.P.C. the right to rebuttal is given to the prosecution only with regard to such points of law that are raised by the counsel for the accused during his arguments. 4. The counsel also submitted that the learned trial Judge violated provisions of Section 234, Cr.P.C. He submitted that under Section 234, Cr.P.C. the right to rebuttal is given to the prosecution only with regard to such points of law that are raised by the counsel for the accused during his arguments. If no new point of law is raised then right to rebuttal cannot be given. But, in the present case, Special Public Prosecutor was given right to rebuttal despite the opposition of the accused that no new point of law was raised by the accused and utilizing this right of rebuttal the Special Public Prosecutor re-argued the matter substantially on facts prejudicing the accused. Since no further chance of rebuttal was given by to the accused, accused wanted to address further oral arguments. 5. On facts, it was submitted by the learned counsel that on 13th August, 2007 trial Court had disposed of the application of the petitioners under Section 234, Cr.P.C. for not giving right to rebuttal to the prosecution and heard the oral arguments of the prosecutor-till 20th August, 2007. After completing the arguments, the case was fixed by the trial Court for 21st August, 2007 for clarification of certain questions rising in her mind. On that day the trial Court did not hear any clarification and deferred the case for 5th September, 2007. The petitioners presented written arguments to the trial Court on 22nd August, 2007 and on 25th August, 2007 and the trial Court directed them that written arguments/submissions be filed on 5th September, 2007 in presence of public prosecutor. On 5th September, 2007 trial Court refused to accept the written arguments/submissions and passed the impugned order. 6. Section 314 of Cr.P.C. deals with the oral arguments and memorandum of arguments. Section 314 of Cr.P.C. reads as under : 314. Oral arguments and memorandum of arguments. - (1) Any party to a proceeding may, as soon as may be after the close of his evidence, address concise oral arguments, and may, before he concludes the oral arguments, if any, submit a memorandum to the Court setting forth concisely and under distinct headings, the arguments in support of his case and every such memorandum shall form part of the record. (2) A copy of every such memorandum shall be simultaneously furnished to the opposite party. (2) A copy of every such memorandum shall be simultaneously furnished to the opposite party. (3) No adjournment of the proceedings shall be granted for the purpose of filing the written arguments unless the Court, for reasons to be recorded in writing, considers it necessary to grant such adjournment. (4) The Court may, if it is of opinion that the oral arguments are not concise or relevant, regulate such arguments. 7. A perusal of above provision shows that after the close of evidence a party has a right to address concise oral arguments and before concluding the oral arguments it has also a right to submit written'arguments set forth concisely and under distinct headings. If such a memorandum of arguments is submitted to the Court before concluding the oral arguments, the same shall form part of the record. It is also necessary that a copy of such memorandum is simultaneously furnished to the opposite party. Sub-clause (3) provides that no adjournment of proceedings is to be granted for purpose of filing written arguments unless the Courts reasons are to be recorded considering it necessary to grant such adjournment. It is, therefore, abundantly clear that the stage at which written arguments can be filed has been laid down clearly by the Code of Criminal Procedure and that stage is before completing the oral arguments by a party. There is a purpose behind this. Section 234, Cr.P.C. gives the sequence in which arguments are to be addressed; first the prosecutor has to sum up the case, second - the accused has to address his arguments and reply and thirdly, if the Court considers it necessary, the Public Prosecutor may, with the permission of the Judge, make submissions in rebuttal on point of law. If written arguments are submitted by the prosecutor before concluding oral arguments, a copy of the same has to be given to the accused simultaneously so that an accused can meet those written arguments in the oral submissions and can also give in response his own written arguments with a copy to the Public Prosecutor. If written arguments are submitted by the prosecutor before concluding oral arguments, a copy of the same has to be given to the accused simultaneously so that an accused can meet those written arguments in the oral submissions and can also give in response his own written arguments with a copy to the Public Prosecutor. The Public Prosecutor after hearing oral arguments and going through these written arguments of the accused will get a chance to rebut as per the procedure laid down under Section 234 of Cr.P.C. If Section 234 and Section 314 of Cr.P.C. are read together, it is apparent that no written arguments can be submitted by either side after the oral arguments are concluded. Once the arguments are concluded by the parties, the proceedings and hearing of the case is over and the Court has only to announce the judgment. If after this stage written arguments are allowed to be placed on record, there is no chance available to the other party to rebut the written submissions. 8. This case has been going on for arguments for more than an year. The accused had ample opportunity, after conclusions of the arguments in October, 2006 by the Special Public Prosecutor, to prepare the written arguments and submit the same before concluding their oral arguments. If the accused had any intention to file written submissions at that stage the law did permit the accused for the same. Had the accused filed the written submissions at the time of concluding the oral arguments, the Public Prosecutor/Special Public Prosecutor in rebuttal would have been able to meet the same or would have filed his own written submissions in response on record. Once the arguments are concluded by both the sides and even rebuttal is over and the case is fixed for judgment the Court cannot allew placing on record written submissions by either of the parties. 9. It is sought to be argued by the learned counsel for the petitioners that the arguments were not concluded on 20th August, 2007 and the Court had posted the case on 21st August, 2007 for seeking certain clarifications and the date of 5th September, 2007 was not given for delivering the judgment. It is also sought to be argued that the order-sheet does not reflect the true proceedings of the days. It is also sought to be argued that the order-sheet does not reflect the true proceedings of the days. It is stated that counsel has filed an affidavit in respect of the true proceedings of the day. This argument must be rejected outrightly. The record of the proceedings as maintained by the Court in the order-sheet is considered conclusive and truthful. This Court cannot entertain a submission about the incorrectness of judicial record, nor the Court, on the basis of affidavit of an advocate can disbelieve the record of the proceedings in the Court. If this is allowed, the entire judicial system shall crumble and in any case, where an advocate seeks to malign the Court or feels inconvenient, may file his affidavit that the order-sheet does not reflect true record of the proceedings and what he states in the affidavit was the true record of the proceedings. No Court can function if the superior Courts start disbelieving the record of the proceedings as recorded by the trial Court on the ground of affidavits of the advocates. I consider that this argument is not worth considering. 10. The fairness to the accused /petitioner does not mean that all requests of the petitioner/accused must be accepted by the trial Court and the procedure as laid down in Cr.P.C. be given a go by. A fair trial means that a proper opportunity has to be given to the accused to address arguments on charge, to cross-examine the witnesses, to answer the questions under Section 313, Cr.P.C., to lead defence and to address final arguments. Fair trial does not mean to concede to every request of adjournment and to cover an extra mile by taking written arguments on record even when the stage is over and the case is fixed for delivery of judgment. 11. The objections of the petitioners about the opportunity given to special public prosecutor to address the Court after the petitioners arguments were over, have been dealt with by trial Court in a detailed order. The same is not subject matter of challenge before this Court, I consider that the petitioners cannot be allowed to keep this case hanging by permitting them to have another round of oral arguments. 12. I find no jurisdictional error or legal infirmity in the order dated 6-9-2007 passed by the trial Court. I find no force in this petition, same is hereby dismissed. 12. I find no jurisdictional error or legal infirmity in the order dated 6-9-2007 passed by the trial Court. I find no force in this petition, same is hereby dismissed. Petition dismissed.