[Uphaar Case] Mere change in counsel not reason to recall witness: Delhi High Court

The Delhi High Court held that change of counsel is not a sufficient reason to re-call a witness for putting certain suggestions as desired by the new counsel in the case [Sushil Ansal v. State of NCT Delhi]..Justice Yogesh Khanna accordingly dismissed a plea filed by Uphaar tragedy convict Sushil Ansal in an evidence tampering case.“…the consistent view of this Court is a mere change of counsel would not suffice to recall witness to put certain suggestions in the manner, the new counsel desires," noted the Court..Ansal had challenged the order of a trial court which had dismissed his plea seeking cross-examination of a key witness on the ground that an erstwhile counsel had chosen not to cross-examine the witness despite an opportunity being granted to him. After a new counsel was appointed, he was of the view that the cross-examination of the witness was necessary,The Court, therefore, reasoned that the petitioner had previously engaged a counsel of his choice who decided not to cross-examine not 1, but 18 witnesses, probably because the petitioner was facing the charge of conspiracy only.“Hence such decision viz not to cross-examine 18 witnesses cannot be said to an inadvertent act but may be a part of his strategy. Since considerable delay has taken place, the plight of victim, also cannot be ignored. The petition being devoid of merits is thus dismissed. Pending application, if any, also stands disposed of,” the High Court held..The trial court had on September 2, 2021, dismissed Ansal’s plea filed under Section 311 (power to summon material witness, or examine person present) of Code of Criminal Procedure (CrPC) saying, “The change of counsel and the decision of the new counsel to cross examine any witness who was not cross examined by the previous counsel is no ground to exercise power under Section 311. CrPC for recalling the witness where due opportunity was afforded earlier.”Senior Counsel appearing for Ansal informed the High Court that initially, the police had chargesheeted Dinesh Chand Sharma, the Ahlmad of the court who was accused of tampering with the court record, but later supplementary chargesheets were filed.The second supplementary chargesheet, it was stated, was filed by Deputy Commissioner of Police Amit Roy, the witness sought to be examined, but the petitioner was never made an accused by him. It was only in the third supplementary chargesheet filed by late inspector RS Chauhan that the petitioner was summoned as an accused.Owing to Chauhan’s death, it was Roy who was sought to be examined by the defence. Roy was stated to be a material witness who had seized various documents relating to the petitioner. Even otherwise, it was the duty on the Court to safeguard the accused and allow him to examine and cross-examine the witnesses under Section 165 of the Indian Evidence Act.Ansal, his Counsel said, was 84 and could not properly comprehend if the cross-examination of the witness was essential for the just decision of the case..Senior Counsel representing the State argued that the petitioner’s contention was nothing but a ploy to delay the matter. He argued that the witness was examined in detail and his examination rather continued for 15 months, running into 27 pages. He was cross-examined by each accused except Ansal, to whom also an opportunity was granted, but the erstwhile counsel made a conscious decision to not to cross-examine the witness, it was submitted.The High Court observed that the power under Section 311 CrPC was to be exercised for “strong and valid” reasons.“Admittedly, PW38 (Roy) on the basis of documents filed/seized by him never considered the petitioner an accused and probably of this reason, the erstwhile counsel did not prefer to cross examine him. It appeared to be a conscious decision of the learned counsel for the petitioner, considering the nature of evidence against him,” it noted.The case pertains to an inquiry ordered by a court in 2003 after some documents related to the Uphaar tragedy case went missing from the court record room. Upon conclusion of the inquiry, the court employee was dismissed..Ansal was represented by Senior Advocate N Hariharan and Advocates Tanveer Ahmed Mir, Dhruv Gupta, Kartik Venu, Saud Khan and Shivaz Berry.Senior Advocate Dayan Krishnan appeared for the State along with Additional Standing Counsel Nandita Rao and Advocates Akashi Lodha and Gayatri Virmani.Senior Advocate Vikas Pahwa with Advocate Raavi Sharma appeared for the complainant..[Read Order]