Sudhanshu Dhulia, J. (Oral) - Mr. J.S. Virk, Advocate, present for the applicant.

2. Mr. Arvind Vashistha, Senior Advocate, assisted by Mr. Vivek Pathak, Advocate for the CBI.

3. Both these petitions have been filed by the applicant-Keeneth Joab, who is an accused in a murder case in an ongoing trial. The allegations as per the charge sheet filed by the Central Bureau of Investigation (in short "CBI") are that the applicant killed his father-in-law (Dr. Jaswant Singh Verma) and later his mother-in-law (Smt. Vijay Laxmi Verma), within a gap of less than one month in the year 2004.

4. In the ongoing trial P.W.10 (Mukta Verma) is the star witness for the prosecution who also happens to be the sister-in-law of the accused. She is the younger sister of applicants wife. It was on her persuasion and on her petition filed before the Honble Apex Court that this matter was ultimately given to CBI, which after investigation has filed the charge sheet before the court concerned. The charge sheet was filed by the CBI as far back as in November 2007.

5. In this matter, it may be necessary to state that there are two session trials going on simultaneously. Session Trial No.204 of 2007 pertains to the murder of Dr. Jaswant Singh Verma (who was the father-in-law of the applicant/accused) whereas Sessions Trial No.205 of 2007 pertains to the murder of Smt. Vijay Lakshi Verma (who was the mother-in-law of the applicant/accused). Both the trials are going on separately.

6. Mukta Verma (P.W.10) gave her examination-in-chief in Session Trial No.204 of 2007 and was also cross-examined on 25.05.2011. In the present case with which we are concerned i.e. Session Trial No.205 of 2007. Mukta Verma (P.W.10) gave her examination in chief on 21.12.2010 but due to paucity of time her cross-examination was deferred. It appears that the date of cross-examination was ultimately fixed for 28.11.2011. This date was fixed in presence of both the counsels and as per the convenience of the defence as well as the prosecution.

7. On 28.11.2011 P.W.10 appeared for her cross-examination. The counsel for the defence Shri. Naresh Mittal, however, did not cross-examine this witness and a plea was taken was that he had gone away to attend the marriage of his nephew. A detail order was passed by the Presiding Officer stating that the same witness (P.W.10) has already been examined in another connected Session Trial i.e. Session Trial No.204 of 2007. It has further come that she (P.W.10) is also a lady and on the family way and should not be needlessly harassed.

8. It also appears that the court requested the defence to cross-examine this witness the next day which the defence refused and said that this could not be done for at least three to four days further since their counsel is not available. Observing all these facts, the court closed the opportunity of the defence to cross-examine P.W.10, and the witness was discharged (these facts have come in the later order of the court dated 15.12.2015).

9. The application thereafter was moved by the defence under Section 311 of Cr.P.C., for recalling the witness (P.W. 10). Short of filing this application it was never perused further by the defence and much later after a period of about 3 years, this application was pressed by the defence, at the stage when the accused was finally to be examined under Section 313 of Cr.P.C. To press their application the defence engaged a new counsel in spite of the fact its earlier counsel Shri. Naresh Mittal was still their counsel on record and had also concluded his cross-examination of the Investigating Officer in the same case on the same day. All these facts have been stated in the rejection order dated 15.12.2015 which reflects the conduct of the defence in the ongoing trial. While noticing all these facts, the trial court though observed that cross-examination is a valuable right of a witness yet it cannot be pressed by a defence which has all along been reluctant to cross examine the witness, as that would frustrate the trial. Ultimately the trial court rejected the application of the accused vide order dated 15.12.2015.

10. This order dated 15.12.2015 has been challenged by the applicant in (Criminal Miscellaneous Application No. 119 of 2016) invoking the inherent jurisdiction of this Court under Section 482 of Cr.P.C., in which the learned Single Judge of this Court has passed following order:-

"As prayed, four weeks time is granted to the respondent/CBI to file counter affidavit.

List this matter thereafter.

In the meanwhile, if an application for adjournment is moved on behalf of applicant before the court below, the same shall be considered for a period of four weeks.

Urgency application (IA No.777 of 2016) stands disposed."

11. Meanwhile adjournment was sought by the applicant and was given by the trial court for a period of four weeks, as observed in the aforesaid order of this Court. Later vide order dated 30.03.2016, the opportunity of the defence for producing defence evidence was closed. This order has been challenged in C482 No.379 of 2016.

12. At this point, the applicant had already been examined under Section 313 of Cr.P.C. Both these applications are being heard together. Learned senior counsel for the CBI - Mr. Arvind Vashistha has pointed out that at the hands of the applicant there is nothing but an abuse of the process of the court. The orders dated 15.12.2015 and 30.03.2016 are valid orders and have been passed in the interest of justice and there is no anomaly in the two orders. The conduct of the defence shows that enough opportunity was granted to it to cross-examine the witness, which it has refused to avail on extremely flimsy grounds. For the same reason, their opportunity finally to produce evidence has also been closed by the trial court.

13. As far as order dated 15.12.2015 is concerned whereby the application under Section 311 of Cr.P.C., has been rejected, this Court finds absolutely no ground to interfere. Power under Section 311 of Cr.P.C., have always to be used on sound and settled judicial principles as well as on grounds of equity. If we look at Section 311 of Cr.P.C, we find that it is divided into two parts. In first part the wide powers have been mentioned to examine or recall, any witness, at any stage. It is marked by the word "may". In other words a Court may, in a given case, use these wide powers. The second part uses the word "shall", where the Court "shall" summon and examine witness, when it is required for "the just decision of the case". Where the legislature has deliberately chosen to use "may" and "shall" at two different places in the same section, the intention of the legislature is very clear. It mandates a different approach from a judge in the two cases.

14. In the present case we find that the court below did not find any justification in recalling the witness. In other words the Court was of the opinion that the recalling of the witness was not necessary for the just decision of the case and in view of this Court rightly so. Consequently, the application no. 119 of 2016 is hereby dismissed.

15. On the other hand although the conduct of the applicant does not inspire confidence, yet purely in the interest of justice one opportunity is given to him to produce his witnesses. Consequently the order dated 30.03.2016 is hereby set aside, which is challenged in application no.379 of 2016. All the same, it is made clear that the court below shall not give more than one opportunity to the defence in order to produce its evidence. Learned counsel for the CBI informs this Court that the matter is already fixed for 11.04.2016 before the trial court. In case it is so, the trial court shall grant one short adjournment to the applicant in the matter. It is further made clear, in case, the applicant fails to avail the opportunity, no further time be given to him for producing evidence.

16. With the aforesaid observations, both the applications filed under Section 482 of Cr.P.C., stand disposed.