Mohammed Ismail Syed vs. The Deputy Commissioner

Facts

The petitioner, Mohammed Ismail Syed, filed a criminal petition under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, before the Telangana High Court. This petition sought to set aside the order dated 17.04.2025 passed by the Special Judge for Economic Offences, Nampally, Hyderabad, in Crl.M.P. No. 141 of 2025, which was filed in C.C. No. 5 of 2018. The petitioner had sought the recall of prosecution witnesses (PWs) 1 to 4 for cross-examination. The trial court had partly allowed the application, recalling PW3 but dismissing the request for PWs 1, 2, and 4. The petitioner, aggrieved by this partial dismissal, approached the High Court.

Held

The High Court allowed the criminal petition, setting aside the order dated 17.04.2025 passed by the Trial Court. The Court held that in the interest of justice and following the principle laid down by the Supreme Court in Union of India Vs. Anil Chanal, an opportunity must be given to the petitioner/accused to cross-examine PWs 1, 2, and 4. The reasoning was that the petitioner's inability to cross-examine earlier was due to the pendency of their compounding application. The Court directed that PWs 1, 2, and 4 be recalled for cross-examination. However, it made it clear that the petitioner's counsel must proceed with the cross-examination on the dates stipulated by the Trial Court without seeking further adjournments. Miscellaneous petitions pending were ordered to stand closed.

Key Issues

1. Whether the Trial Court erred in dismissing the application for recall of PWs 1, 2, and 4 for cross-examination, despite the pendency of a compounding application before the authorities? (Question of law and fact, turning on principles of natural justice and fair trial). Contentions: Petitioner/Accused: Argued that the pendency of their application for compounding of offences before the authorities prevented them from effectively cross-examining the witnesses during the relevant period. They sought to recall PWs 1, 2, and 4 for cross-examination. Revenue/State (CBIC): Submitted that the Trial Court had considered all facts and circumstances. They noted that the witnesses were not cross-examined despite several adjournments and a conditional order with costs imposed. However, they conceded that PW3 was not summoned after framing of charges, hence the recall was allowed. They relied on the Supreme Court decision in Union of India Vs. Anil Chanal, 2007 (12) ELT 481 (SC) to argue that an opportunity for cross-examination should be given in the interest of justice.