DELHI POLLUTION CONTROL COMMITTEE vs VISHAL MEGA MART & ANR

$~24
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: December 05, 2023
+ CRL.M.C. 2197/2019 & CRL.M.A. 8790/2019
DELHI POLLUTION CONTROL COMMITTEE ….. Petitioner
Through: Mr. Narender Pal Singh, Mr. Yogesh Kumar and Mr. Sumit Shrivastava, Advocates.

versus

VISHAL MEGA MART & ANR ….. Respondents
Through: Ms. Seema Gulati and Mr. Pankaj Yadav, Advocates.

CORAM:
HON’BLE DR. JUSTICE SUDHIR KUMAR JAIN
J U D G M E N T (oral)

1. The present petition is filed under section 482 Cr.P.C. to impugn the order dated 26.11.2018 passed by the court of Sh. Pawan Singh Rajawat, ACMM (Special Act), Central District, Tis Hazari Court, Delhi in complaint case bearing no. 533218/2016 titled as DPCC V Vishal Mega Mart & Another.
2. The petitioner filed a complaint under sections 15/16/19 of the Environment (Protection) Act, 1986 and under section 190 Cr.P.C. against the respondents. The petitioner led post-charge evidence after framing of the charges vide order dated 19.12.2018 passed by the court of Sh. Pawan Singh Rajawat, ACMM (Special Act), Central District, Tis Hazari Court, Delhi.
3. The petitioner in post-charge evidence preferred to examine Pankaj Kapil as CW-1 and M I Siddiqui as CW-2 vide proceedings dated 07.05.2018. The proceedings dated 07.05.2018 conducted in the court of Sh. Pawan Singh Rajawat, ACMM (Special Act), Central District, Tis Hazari Court, Delhi reflects that CW-2 M I Siddiqui and CW-1 Pankaj Kapil were cross-examined in terms of section 246(5) Cr.P.C. and the case was adjourned for 02.06.2018 for further complainant evidence. It is also reflecting from the order sheet dated 07.05.2018, that CW-1 Pankaj Kapil appeared before the court at 2:00 PM and stated that he did not want to sign the evidence recorded in the pre-lunch session as some questions are wrongly mentioned for which he had not given the answers with respect to biodegradable material.
4. The trial court in order dated 12.09.2018 recorded that the cross-examination of CW-1 Pankaj Kapil and CW-2 M I Siddiqui was recorded on 07.05.2018 and most of the cross-examination of these two witnesses was formal and due to this reason, necessary corrections were made in the cross-examination of CW-1 Pankaj Kapil as he was cross-examined after CW-2 M I Siddiqui. It was also observed that even the cross-examination of CW-1 Pankaj Kapil was recorded in the presence of the Presiding Officer but the witness had raised some objection about few questions and their answers as recorded. On 12.09.2018, the counsel for the complainant submitted for fresh recording of cross-examination of CW-1 Pankaj Kapil and the counsel for the accused no. 1 also submitted that he has no objection if the entire cross-examination of CW-1 Pankaj Kapil is recorded afresh but after discarding the cross-examination of CW-1 Pankaj Kapil recorded on 07.05.2018. The counsel for the accused no. 2 submitted that unless the complainant moves an appropriate application in this regard, the cross-examination of the CW-1 Pankaj Kapil should not be recorded afresh.
5. The impugned order dated 26.11.2018 reflects that the trial court did not agree with the objections raised on behalf of the counsel for the accused no. 2 that unless the complainant moves an appropriate application, the cross-examination of CW-1 Pankaj Kapil should not be recorded afresh. It was observed by the trial court that the sanctity of the testimonies of the witnesses recorded before the court is sacrosanct and any allegations of incorrectness are to be dealt forthwith. The trial court also observed that the entire cross-examination of CW-1 Pankaj Kapil and CW-2 M I Siddiqui was recorded in the presence of Presiding Officer and under his dictation and the objection as to the recording of CW-1 Pankaj Kapil was not correctly recorded is found to be factually incorrect.
6. It is reflecting from the impugned order dated 26.11.2018 that the petitioner has produced CW-1 Pankaj Kapil and CW-2 M I Siddiqui in the post-charge evidence. However, the cross-examination of CW-2 M I Siddiqui was recorded before the cross-examination of CW-1 Pankaj Kapil. It is also reflecting that as the cross-examination of CW-1 Pankaj Kapil and CW-2 M I Siddiqui happened to be identical as such, the trial court for the purpose of cross-examination of CW-1 Pankaj Kapil, made corrections in the already recorded cross-examination of CW-2 M I Siddiqui after putting questions and making necessary corrections.
7. The counsel for the petitioner argued that the recording of the cross-examination of CW-1 Pankaj Kapil was not as per the procedure and in accordance with law and the trial court should not have made corrections after putting questions to CW-1 Pankaj Kapil in the already recorded cross-examination of CW-2 M I Siddiqui. The impugned order is liable to be set aside.
8. The counsel for the respondents during the course of arguments, referred section 278 Cr.P.C. and judgment titled as Mid Mohd. Omar and Ors. V State of West Bengal (1989) 4 SCC 436 passed by the Supreme Court and judgment titled as Siddhanchit Roy V Rabindra Kumar Mallick 134 (2022) CLT 658 passed by the High Court of Orissa at Cuttack. The relevant portion of the judgment titled as Siddhanchit Roy (supra) is reproduced as under:-
4. The petitioner is facing trial for commission of an offence under section 138 of the N.I. Act and after the closure of the evidence from the side of the complainant and recording of the accused statement, the petitioner examined himself as D.W.1. In fact, he filed the evidence affidavit whereafter he was examined further by his own counsel in examination in-chief and then he was cross-examined by the learned counsel for the complainant-opposite party. After the cross-examination was over, it seems that the evidence was read over to the petitioner and explained and thereafter he signed the deposition sheet on each page on 08.12.2021. The counsel for the petitioner filed a petition on 15.12.2021 in the trial Court indicating therein that some questions were put to him by the counsel for the complainant and correct answers were given but the same has been wrongly recorded by the Court and therefore, a prayer was made to correct the recording of the evidence.

8. Section 278 of Cr.P.C. deals with procedure in regard to the evidence when it is completed and it states, inter alia, that as the evidence of each witness taken under section 275 or section 276 of Cr.P.C. is completed, it shall be read over to him in the presence of the accused, if in attendance, or of his pleader, if he appears by pleader, and shall, if necessary, be corrected and it is further provided that if the witness denies the correctness of any part of the evidence when the same is read over to him, the Magistrate or Presiding Officer may, instead of correcting the evidence, make a memorandum thereon of the objection made to it by the witness and shall add such remarks as he thinks necessary. It is further provided that if the record of the evidence is in a language different from that in which it has been given and the witness does not understand that language, the record shall be interpreted to him in the language in which it was given, or in a language which he understands.

12. In the case in hand, when the accused (petitioner) decided to examine himself as D.W.1 to substantiate his defence plea and to create doubt in the veracity of the accusation brought on record by the complainant either by way of oral evidence or documentary evidence and filed the evidence affidavit and then he was examined further in-chief and cross-examined and after his cross-examination is over, he was asked to go through his deposition sheet and put his signature on each page of the deposition sheet, he never raised any objection about of any wrong recording. The contention of the learned counsel for the petitioner that everything was done in a hurried manner and the petitioner could not get time to go through the evidence minutely and therefore, the evidence should be corrected is not acceptable. The correction, which has been sought for in the evidence is completely different than what evidence has been recorded. Therefore, it would be too risky to allow further examination of the petitioner as D.W.1 and permit him to make correction in the evidence already recorded. However, if any, new fact is there with the petitioner to be deposed to prove his case which he has inadvertently left out, his counsel can file an application for recall of petitioner to depose only those aspects and in the recall petition, specific questions likely to be put to D.W.1 should be mentioned and the same shall be considered by the learned trial Court and, if it is found to be relevant, just and proper and the Court decides that the recalling of D.W.1 would be essential for the just decision of the case then the Court is at liberty to allow such prayer for recall of D.W.1 but not for correcting the evidence which he has already given either in the chief examination or in the cross-examination.

9. The counsel for the respondent further argued that CW-1 Pankaj Kapil cannot be called for his fresh cross-examination as the CW-1 Pankaj Kapil during the cross-examination recorded before the trial court has answered certain questions, which may be in the interest of defence of the respondents.
10. This court is of the considered view that the procedure adopted by the trial court in recording the cross-examination of CW-1 Pankaj Kapil as reflecting from the impugned order 26.11.2018 is not legally and procedurally correct. The trial court should have recorded the cross-examination of CW-1 Pankaj Kapil after making necessary corrections in the already recorded cross-examination of CW-2 M I Siddiqui as reflecting from the impugned order dated 26.11.2018.
11. Accordingly, the trial court is directed to recall CW-1 Pankaj Kapil for re-examination of the said witness and thereafter, the respondents shall be at liberty to cross-examine CW-1 Pankaj Kapil in accordance with law after his re-examination on the date so fixed by the trial court.
12. The present petition along with pending application, stands disposed of.

13. Copy of this order be sent to the trial court for information and compliance.

DR. SUDHIR KUMAR JAIN, J
DECEMBER 05, 2023
N/SD

CRL.M.C. 2197/2019 Page 8