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DR Sharma Versus Gautam Cable Industries & Ors.

2016 (8) TMI 11 - DELHI HIGH COURT

Offences punishable under Sections 9 and 9AA of Central Excise Act - an application under Section 311 Cr.P.C was filed by the petitioner seeking recalling of the witnesses. The same was dismissed - Though the complainant/petitioner pressed an application for withdrawal of show cause notice to Joint Commissioner, Excise but did not bother to examine the witnesses. The petitioner was more concerned about the waiver of the cost imposed and exemption of the Joint Commissioner from personal appearanc .....

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it commits no illegality. - During the course of arguments this Court raised a query to the learned counsel for the petitioner as to whether he was in a position to produce all its witnesses expeditiously on one or two dates, when the learned counsel for petitioner was clueless as it was not even known as to how many witnesses are now available for examination. Considering the conduct of the complainant during trial, I find no infirmity in the impugned order dismissing the application of the .....

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311 Cr.P.C. 2. The matter was listed for final hearing before the learned Trial Court on 3rd November, 2010 however after the present petition was filed, the proceedings before the learned Trial Court could not take place as this Court was pleased to summon the trial Court record vide order dated 4th October, 2012. 3. A perusal of the order sheets of learned Trial Court would reveal that summons were issued on the complaint on 9th June, 2000 for offences punishable under S .....

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4th June, 2003 one witness D.K. Sharma was present however learned Spl.P.P stated that the said witness had been wrongly summoned as his evidence was already recorded, thus the witness was discharged. After partly recording statement of PW-2 on 30th October, 2003, no witness was present on 9th March, 2004. On 10th August, 2004 and 27th January, 2005 PW-3 was examined. On 27th July, 2005 PW-2 was present however the original documents were not produced by the department. On 10th January, 2006 th .....

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t appeared. Thus, show cause notice was issued to the Joint Commissioner, Excise with direction to appear and to show cause why the witnesses were not being examined and why there was no appearance on behalf of the Spl.P.P. On 15th February, 2008, two witnesses were present and partly examined however their examination-in-chief was required to be deferred as original documents were not placed on record. 4. Since the petitioner challenged the order dated 23rd November, 2007 passed by l .....

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, there was no appearance on behalf of the department, thus the presence of Mr. S.K. Behl cannot be noted, however the show cause notice to Joint Commissioner, Excise was withdrawn. Again on 4th September, 2008 none was present on behalf of the petitioner nor was any witness present. Thus, the evidence of the petitioner was closed. 5. An application under Section 311 Cr.P.C was filed by the petitioner seeking recalling of the witnesses. The same was dismissed by the impugned order. As .....

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to examine the witnesses. The petitioner was more concerned about the waiver of the cost imposed and exemption of the Joint Commissioner from personal appearance. 6. It is bounded duty of the Court to ensure speedy trial. The complaint was pending for pre-charge evidence for more than 7 years and out of 13 witnesses only 5 witnesses were examined and that too partly. The impugned order passed by the learned Trial Court is in conformity with the mandate of the Supreme Court in the dec .....

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peditiously as possible, and in particular, when the examination of witnesses has once begun, the same to be continued from day to day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded. Explanation-2 to Section 309 confers power on the Court to impose costs to be paid by the prosecution or the accused, in appropriate cases, and putting the parties on terms whi .....

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orded, to pronounce a judgment of acquittal, and in any other case, release the accused, having effect of discharge. This provision is almost never used by the Courts. In appropriate cases, inherent power of the High Court, under Section 482 can be invoked to make such orders, as may be necessary, to give effect to any order under the Code of Criminal Procedure or to prevent abuse of the process of any Court, or otherwise, to secure the ends of justice. The power is wide and, if judiciously and .....

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ess of law was clearly made out. Such power can certainly be exercised on a case being made out of breach of fundamental right conferred by Article 21 of the Constitution. The Constitution Bench in A.R. Antulay's case referred to such power, vesting in the High Court (vide paras 62 and 65 of its judgment) and held that it was clear that even apart from Article 21, the Courts can take care of undue or inordinate delays in criminal matters or proceedings if they remain pending for t .....

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