Criminal Writ Petition No.446 of 2004

4th October, 2004

Petitioner Counsel: Shri. V. N. DAMLE,A. H. KAPADIA
Respondent Counsel: Shri. V. K. JAJU

Cases Cited:
Dahyabhai Chhaganbhai Thakkar Vs. State of Gujarat, AIR 1964 SC 1563 [Para 5]
Gura Singh Vs. State of Rajasthan, 2001 ALL MR (Cri) 764 (S.C.)=(2001)2 SCC 205 [Para 10]
Rammi Vs. State of Madhya Pradesh, 2000(1) ALL MR 324 (S.C.)=1999 Cri.L.J. 4561 [Para 11]

JUDGMENT

JUDGMENT :- Rule. Rule made returnable forthwith. By consent of the parties, the matter is taken up for hearing.

2. The petitioner is facing prosecution in Special Case No.7 of 2000 for offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. The prosecution examined the complainant Ashok Ramrao Awad. After his examination-in-chief was over, the defence started cross-examining him. At a stage, the Public Prosecutor declared the witness as hostile and requested the Court to grant permission to cross-examine him. The Special Court granted the request made by the Public Prosecutor in the following manner :-

"(At this stage, the learned Public Prosecutor declared the witness hostile and requested to cross-examine the witness. Considering the evidence of witness coming in examination-in-chief and admission in cross-examination particularly admission given by the witness today, permission for cross-examination is granted.)"

Thereafter the Public Prosecutor cross-examined the witness and concluded the same on 23-8-2004.

3. An application came to be filed on the same day by the accused seeking permission to cross-examine the complainant on the ground that the witness while in cross-examination of the Public Prosecutor gave certain statements against the accused.

4. By an order dated 23-8-2004 the learned Special Judge rejected the request made by the accused. In the present petition the order rejecting the application of the accused seeking further cross-examination of the witness is impugned.

5. The learned counsel appearing for the petitioner submitted that the cross-examination of the defence was not over and the Public Prosecutor in the midst sought permission to declare the witness hostile which was accordingly granted by the Court. In the cross-examination done by the Public Prosecutor the witness has given certain admissions. The defence had not exhausted the cross-examination of the witness as in the midst of the same the Public Prosecutor sought permission to declare the witness hostile which was granted by the Court. To support his submission the learned counsel placed reliance on a judgment of the Apex Court in the matter of Dahyabhai Chhaganbhai Thakkar Vs. State of Gujarat reported in AIR 1964 SC 1563, in which it was observed in para 8 :

"It cannot also be said that if a party calling a witness is permitted to put such questions to the witness after he has been cross-examined by the adverse party, the adverse party will not have any opportunity to further cross-examine the witness on the answers elicited by putting such questions. In such an event the Court certainly, in exercise of its discretion, will permit the adverse party to cross-examine the witness on the answers elicited by such questions. The Court, therefore, can permit a person, who calls a witness, to put questions to him which might be put in the cross-examination at any stage of the examination of the witness, provided it takes care to give an opportunity to the accused to cross-examine him on the answers elicited which do not find place in the examination-in-chief."

6. The learned A.P.P. submitted that the accused had exhausted his right to cross-examine the witness already. After declaring the witness hostile, the Public Prosecutor cross-examined the witness and the witness did not say anything new than what he had stated in the examination-in-chief. Therefore, the defence need not be permitted again to cross-examine the witness and such process would be unending.

7. In the impugned order the learned Special Judge observed that during the gap after examination-in-chief which was over on 6-8-2004 and his cross-examination by the accused, the witness was won over by the accused and, therefore, he deposed contrary to his examination-in-chief. In the cross-examination conducted by the Public Prosecutor nothing new was brought on record by the prosecution and the story which was narrated in the examination-in-chief was deposed by the witness while he was cross-examined by the Public Prosecutor. It was further observed that the defence counsel has taken full opportunity to cross-examine the witness and has brought on record certain admissions. It was further observed that if the defence is permitted to cross-examine there will be no end to this process.

8. The learned counsel for the petitioner submitted that the defence is seeking permission to cross-examine the witness in relation to the portion of his deposition which could be contrary to his deposition in the examination-in-chief or to the portion which damages, according the defence, the admissions given by the witness in the cross-examination of the defence. The learned counsel for the petitioner submits that in case he is permitted he would restrict his cross-examination to the portion of the admission of the witness made in the cross-examination of the Public Prosecutor which is contrary to his earlier statements made in the examination-in-chief.

9. The provisions of Section 137 of the Indian Evidence Act refer to examination-in-chief, cross-examination and re-examination. The provision of section 154 of the Act empowers the Court in its discretion to permit a person who calls a witness to put any question to him which might be put in the cross-examination by the adverse party.

10. In Gura Singh Vs. State of Rajasthan reported in (2001)2 SCC 205 : 2001 ALL MR (Cri) 764 (S.C.), the Apex Court held in paragraphs 11 and 12 :-

"The terms "hostile", "adverse" or "unfavourable" witnesses are alien to the Indian Evidence Act. The terms "hostile witness", "adverse witness", "unfavourable witness", "unwilling witness" are all terms of English law. The rule of not permitting a party calling the witness to cross-examine are relaxed under the common law by evolving the terms "hostile witness" and "unfavourable witness". Under the common law a hostile witness is described as one who is not desirous of telling the truth at the instance of the party calling him and an unfavourable witness is one called by a party to prove a particular fact in issue or relevant to the issue who fails to prove such fact, or proves the opposite test. In India the right to cross-examine the witness by the party calling him is governed by the provisions of the Indian Evidence Act, 1872. Whether it be the grant of permission under Section 142 to put leading questions, or the leave under Section 154 to ask questions which might be put in cross-examination by the adverse party, the Indian Evidence Act leaves the matter entirely to the discretion of the court. The courts are, therefore under a legal obligation to exercise the discretion vesting in them in a judicious manner by proper application of mind and keeping in view the attending circumstances. Permission for cross-examination in terms of Section 154 of the Evidence Act cannot and should not be granted at the mere asking of the party calling the witness. In a criminal trial where a prosecution witness is cross-examined and contradicted with the leave of the court by the party calling him for evidence cannot, as a matter of general rule, be treated as washed off the record altogether. It is for the court of fact to consider in each case whether as a result of such cross-examination and contradiction the witness stands discredited or can still be believed in regard to any part of his testimony."

11. In Rammi Vs. State of Madhya Pradesh reported in 1999 Cri.L.J. 4561 : 2000(1) ALL MR 324 (S.C.), the Apex Court observed :-

"The very purpose of re-examination is to explain matters which have been brought down in cross-examination. There is an erroneous impression that re-examination should be confined to clarification of ambiguities which have been brought down in cross-examination. No doubt, ambiguities can be resolved through re-examination. But that is not the only function of the re-examiner. If the party who called the witness feels that explanation is required for any matter referred to in cross-examination he has the liberty to put any question in re-examination to get the explanation. The Public Prosecutor should formulate his questions for that purpose. Explanation may be required either when ambiguity remains regarding any answer elicited during cross-examination or even otherwise. If the Public Prosecutor feels that certain answers require more elucidation from the witness he has the freedom and the right to put such questions as he deems necessary for that purpose, subject of course to the control of the Court in accordance with the other provisions."

12. In the present case, after declaring the witness hostile, in the cross-examination of the Public Prosecutor he made certain statements which may go contrary to the statement made while the witness was examined by the State. It was submitted on behalf the petitioner that he had not completed his cross-examination and, therefore, it would be in tune with the legal position and the factual aspect of the matter that he be permitted to cross-examine the witness to a limited extent as indicated by the defence which would be in the interest of the parties and in the interest of justice also.

13. In view of the rival submissions made by the parties and the factual aspect of the matter, I am inclined to allow this petition and permit the petitioner to cross-examine the witness by the defence to the extent wherein the witness in the cross-examination done by the Public Prosecutor has contradicted himself in relation to the statements/admissions made by him in the examination-in-chief.

14. The learned Special Judge shall permit the defence to cross-examine the witness to the extent as explained above, by exercising judicious discretion and in accordance with law.

15. In the result, the impugned order dated 23-8-2004 passed by the learned Special Judge on application Exh.29 in Special Case No.7/2000 is quashed and set aside. Rule is made absolute in the above terms.

Petition allowed.