This petition is filed under Section 482 Cr.P.C., to set aside the order dated 14.02.2017 and made in the criminal case in C.C.No.22 of 2014 on the file of the learned XII Additional Special Judge for CBI Cases, Chennai.
2. The petitioner herein is the 2nd accused in the above said case.
3. Heard Mr.A.Ramesh learned Senior Counsel assisted by Mr.C.Arun Kumar, learned counsel who is on record for the petitioner and Mr.K.Srinivasan, learned Special Public Prosecutor for CBI cases.
4. On considering the submissions made on behalf of both sides and on perusal of the averments of the petition along with the impugned order, this Court does passeth the following order.
5. The petitioner being the 2nd accused in the case, along with other accused has been facing the charges under Sections 120B of I.P.C. r/w. S.13(2) r/w. 13(1)(e) of Prevention of Corruption Act, 1988.
6. As per the case of prosecution, the petitioner herein/A2 who is the Chief Manager in a Nationalised Bank along with her husband, who is also a public servant in an autonomous body, controlled by Government of India has amassed wealth disproportionate to their known sources of income between 2005 and early 2013.
7. Insofar as this case is concerned, trial was commenced. So far 21 witnesses were examined on behalf of the prosecution. Indeed all witnesses were cross-examined. When the matter stood thus, while P.W.21 Sakthivel was examined, it was reported that at the first instance in his evidence in chief, he had deposed in consonance with his statement under Section 161(3) Cr.P.C. When he was cross- examined by the defence as per the learned Senior Counsel Mr.A.Ramesh, he had given a complete go by to his chief examination and detracted from his 161(3) statement. Therefore, the learned Special Public Prosecutor, who is representing for State before the Court below had made a request before the Trial Judge to treat PW1 as hostile.
8. The exact version observed by the learned Trial Judge beneath the cross-examination of P.W.21 is given as under:
''The learned P.P. requested to treat the witness hostile as the witness contradicts his evidence in cross- examination. At request, for both side arguments on this point, adjourned.''
This order seems to have been passed by the learned Trial Judge on 21.03.2016.
9. That on 14.02.2017, the learned Trial Judge, after placing reliance upon the decision of the Apex Court made in State of Bihar v. Lallu Prasad @ Lallu Prasad Yadav and another ((2002) (9) SCC 626) had granted permission to the Public Prosecutor to cross-examine P.W.1. The order passed by the learned Trial Judge on 14.02.2017 has been extracted here under:-
njjp 14-2-2017
C.C.No.22/2014
cj;jput[
,e;j tHf;fpy; muR jug;gpy; rhl;rp tprhuiz eilg;bgw;Wf bfhz;Ls;sJ/ m/rh/21 jpUrf;jpnty; vd;gth; 21/03/2016 md;W ,t;tHf;fpd; vjphpfs; jug;gpy; FWf;F tprhuiz Koe;jt[ld; muR jug;g[ tHf;fwp"h; nkw;go rhl;rp m/rh/21 FWf;F tprhuizapy; Kjy tprhuizf;F khwhf rhl;rpak; mspj;Js;sjhy; mtiu gpwH;rhl;rpahf kWtprhuizapy; (Re-examination) ,e;ePjpkd;wj;jpy; mg;nghija fw;wwpe;j 12tJ TLjy; ePjpgjp (rpgpI tHf;Ffs;) mDkjp nfl;L mjid fw;wwpe;j vjphpfs; jug;g[ tHf;fwp"h; fLikahf Ml;nrgiz bra;jjpd; mog;gilapy; ,Ujug;gpd; thJiufis nfl;L nkw;go m/rh/21 kW tprhuizapy; gpwH;rhl;rpahf fUj mDkjp mspj;J FWf;F tprhuiz bra;a muR tHf;fpw"Uf;F mDkjp mspf;fyhkh vd;W fUjp ,e;ePjpkd;wk; cj;jputpLfpwJ/ fw;wwpe;j vjphpfs; jug;g[ K:j;j tHf;fwp"h; khz;g[kpF brd;id cah;ePjpkd;w Kd; jPh;g;g[ R.Srinath vs. State, dt. 11.3.2011 vd;w Kd; jPh;g;iga[k;. Spushpendrasinh @ Paresh Vaghela vs.State of Gujarat dated 8.2.2013 Kd; jPh;g;iga[k; Rl;of;fhl;o muR jug;g[ tHf;fwp"h; jkJ jug;g[ rhl;rpia gpwH; rhl;rpahf fUj KoahJ vd;W rhl;rpa rl;lj;jpd; rk;ge;jg;gl;l gphpt[fis vLj;Jiuj;J jkJ thjj;ij Kd; itj;jhh;/ fw;wwpe;j muR jug;g[ tHf;fwp"h; Crl.Appeal No.243/2001 dated 14.9.2001,K.T.Thomas,S.N.Variava, J.J.(Supreme Court) vd;w Kd; jPh;g;ig Rl;of;fhl;o ,j;jifa jUzj;jpy; nkw;go rhl;rpia gpwH; rhl;rpahf fUjyhk; vd;W jd; thJiuia Kd; itj;jhh;.
fw;wwpe;j vjphpfs; jug;g[ tHf;fwp"h; rl;of;fhl;oa Kd;jPh;g;g[fs mtUila thJiuf;F Mjuthf mike;jnghjpYk; mitfs; khz;g[kpF cah; ePjpkd;w';fspy; xU egh; mkh;t[ MFk;/ Mdhy; fw;wwpe;j muR jug;g[ tHf;fwp"h; Rl;of;fhl;oa jPh;g;ghdJ. Crl.Appeal No.243/2001 dated 14.9.2001,K.T.Thomas,S.N.Variava, J.J.(Supreme Court) khz;g[kpF cr;rePjpkd;wj;jpy; Division Bench jPh;g;ghFk;. nkw;go jPh;g;gpd; go FWf;F tprhuizapd; Kotpy; xU jug;g[ me;j jug;gpw;F vjpuhf rhl;rpak; mike;jpUf;Fkhdhy; mtiu gpwH; rhl;rpahf ghtpf;fyhk; vd;W Mjuthf mike;Js;sJ/ vdnt ,e;j tHf;fpy m/rh/21 rhl;rp tprhuizapy; mtiu kW tprhuizapy; gpwH rhl;rpahf fUj mDkjpj;J muR jug;g[ FWf;F tprhuiz bra;a mDkjpf;fyhk; vd;W ,e;j ePjpkd;wk; fUjp mt;thnw cj;jputplg;gLfpwJ/ Signed XII Addl.Spl.Judge for CBI Cases, Chennai-104.
10. Mr.A.Ramesh, learned Senior Counsel has contended that the power conferred on the trial court under Section 154 of the Evidence Act to declare a witness as hostile and exercising the power in respect of a case were two different things.
11. According to the learned Senior Counsel, the power conferred on the trial court in this aspect had to be exercised judiciously. With reference to the impugned order he has maintained that the learned Prosecutor despite opportunities were given did not choose to file a memorandum or a petition explaining the reason on what facts or purpose the witness needed to be treated as hostile.
12. Secondly, he has contended that the impugned order did not reflect the nature of evidence or reasons for permitting the witness to be treated as hostile.
13. Thirdly, he has contended that the impugned order was cryptic and non-speaking one and in this connection, he has made reference to the following decision of the Apex Court in Sat Paul v. Delhi Administration reported in AIR 1976 SC 294(1). In this case, His Lordship Hon'ble Mr.Justice R.S.Sarkaria, while speaking on behalf of a Division Bench of the Apex Court has observed in paragraph No.37 which is as under:
''37. To steer clear of the controversy over the meaning of the terms ''hostile'' witness, ''adverse'' witness, ''unfavourable'' witness which had given rise to considerable difficulty and conflict of opinion in England, the authors of the Indian Evidence Act, 1872 seem to have advisedly avoided the use of any of those terms so that in India, the grant of permission to cross-examine his own witness by a party is not conditional on the witness being declared ''adverse'' or ''hostile''. Whether it be the grant of permission under Sec.142 to put leading question, 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(see the observations of Sir Lawrence Jenkins in Baikuntha Nath v. Prasannamoyi. AIR 1922 PC 409). The discretion conferred by Section 154 on the court is unqualified and untrammeled, and is apart from any question of ''hostility''. It is to be liberally exercised whenever the court from the witness's, demeanour temper, attitude, bearing, or the tenor and tendency of his answers, or from a perusal of his previous inconsistent statement, or otherwise, think that the grant of such permission is expedient to extract the truth and to do justice. The grant of such permission does not amount to an adjudication by the court as to the veracity of the witness. Therefore, in the order granting such permission, it is preferable to avoid the use of such expressions, such as ''declared hostile'', ''declared unfavourable'', the significance of which is still not free from the historical cobwebs which, in their wake bring a misleading legacy of confusion, and conflict that had so long vexed the English Courts.''
14. Paragraph No.51 is also very much relevant for the better disposal of this petition which is also extracted hereunder:
''51. From the above conspectus, it emerges clear that even in a criminal prosecution when a witness is cross-examined and contradicted with the leave of the court by the party calling him his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as matter of prudence, discard his evidence in toto.''
15. Section 154 of the Indian Evidence Act, 1872 deals with Questions by party to his own witness.
Section 154 sub-sections 1 and 2 reads as under:
''S.154. (1) The Court may, in its discretion, permit the person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party.
(2) Nothing in this section shall dis entitle the person so permitted under sub- section(1), to rely on any part of the evidence of such witness.''
''Section 154 arise that the court in its discretion can allow a party to put any questions to its own witness which might be put in cross-examination by the opposite party. The court is expected to find out the truth of the case put forward by both the parties. With that object this provision is made empowering the court to use its discretion to allow a party to put questions to his own witness which might be put in the cross-examination by the opposite party. The witness can be asked(1) leading questions under Section 143, (2) questions relating to his previous statements in writing under Section 145, and (3) questions which tend to test his veracity under Section 146. Thus the ordinary rule that a party calling a witness is not to be allowed to ask such questions is relaxed in this section. This relaxation is made with the sole purpose of finding out whether the witness is one of truth for the purpose of relying on his evidence.
Where a party calling a witness and examining him discovers that he is either hostile or unwilling to answer questions put to him, he can obtain permission of the Court to put questions to him which may be put to him by way of cross-examination. The section does not say that a person who calls a witness may cross-examine him in certain circumstances, but he might put questions to him which might be put in cross-examination by the adverse party. That is not the same as cross-examination. This principle is laid down in Bikram Ali Pramanik v. Emperor, ILR (1929) 57 Cal 801; Luchi Ram Motilal Boid v. Radha Charan Poddar, ILR (1921) 49 Cal 93 ; Khijiruddin Sonar v. Emperor, ILR (1925) 53 Cal 372 ; Dadabuddappa Gouli v. Kalu Kanu Gouli, AIR 2000 Kant 158 (paras 5-8 and 14).''
16. In Ammathayarammal v. Official Assignee, Madras, ILR (1932) 56 Mad 7 : AIR 1933 Mad 137 ; Mohan Banjari v.
King-Emperor, (1933) 30 NLR 55 : AIR 1933 Nag 384, it is held that :
''Under this section, before a party calling a witness can cross-examine him, it is not necessary that the witness should first be declared to be hostile to the party calling him, and the Court has unfettered discretion to allow a counsel to put questions of a cross- examination nature to his own witness even though he did not show himself hostile to the party calling him, but the Court ought not to exercise its discretion unless during the examination-in-chief something happens which makes it necessary for the facts to be got from that witness by cross-examination; it is necessary before the procedure under this section can be adopted that leave of the Court should be asked for and obtained or permission given by the Court suo motu for the said purpose before such questions are put to a witness though the section may not make such a procedure imperative and the permission contemplated by the section should be signified, if not in words, by some other action of the Court indicating its permission during the cross-examination of the witness by the party calling him.''
17. In State of Bihar v. Laloo Prasad alias Laloo Prasad Yadav and another (2002) 9 SCC 626, it is held that In chief examination a prosecution witness mentioned about a document executed in 1993 styling the same as a sale deed and further stated that he received the consideration thereof in 1983. Though the said last part of the chief examination was not in consonance with the prosecution case, but the Public Prosecutor did not seek permission of the trial court to put questions to the witness. Hence the adverse party cross-examined him. It was in the cross- examination that the witness gave further details of how he received the consideration. After the cross-examination was over, the Public Prosecutor sought the court's permission to treat the witness as hostile. The trial court declined the permission. The High Court declined to interfere with the order of the trial court.
18. Under this circumstance, a Division Bench of the Apex Court has held that :
''Though it is open to the party who calls the witness to seek the permission of the court (as envisaged in Section 154 of the Evidence Act) at any stage of the examination, nonetheless a discretion has been vested with the court whether to grant the permission or not. Normally when the Public Prosecutor requested for permission to put cross-questions to a witness called by him the court used to grant it. Here, if the Public Prosecutor had sought permission at the end of the chief examination itself the trial court would have no good reason for declining the permission sought for. But, the Public Prosecutor did not do so at that stage. That is precisely the reason why the trial Judge declined to exercise his discretion when the permission was sought for after the cross examination was over. The witness has said only the details in cross- examination regarding the matter which he said in the chief examination itself. It would have been a different position if the witness stuck to his version he was expected to say by the party who called the witness, in the examination-in-chief, but he showed propensity to favour the adverse party only in cross- examination. In such case the party who called him has a legitimate right to put cross- questions to the witness. But if he resiled from his expected stand even in the chief examination the permission to put cross- questions should have been sought then. In such a situation it cannot be held that the trial Judge has gone wholly wrong in declining to exercise the discretion envisaged under Section 154 of the Evidence Act in favour of the appellant.''
19. The learned Senior Counsel has made reference to a decision of this Court and made in R.Srinath Vs. The State,
by the Inspector of Police SPE/CBI/BS & FC/Bangalore reported in 2011 (2) MWN (Cr.) 239. This decision cannot be equated with the given case on hand as it is distinguishable.
20. In the above cited decision, after the commencement of trial, two witnesses were examined on behalf of the prosecution. One Mr.N.Venketraman was examined as PW2 both in chief as well as in cross on 08.04.2010. After passing of four months, the prosecution through its Special Public Prosecutor had filed a memorandum on 09.08.2010 to declare PW2 as hostile to the prosecution case. This was vehemently objected by the petitioner. The Trial Court has however proceeded to pass an order permitting the Special Public Prosecutor to treat PW2 as a hostile witness and to cross-examine in respect of the hostile portion of the evidence given in the cross examination. The order dated 18.09.2010 was challenged before this Court in Crl.O.P.No.25787 of 2010.
21. While allowing the petition, after setting aside the impugned order, this Court in paragraph No.20 has observed that :
''Section 154 of the Indian Evidence Act, 1872 confers its judicial direction on the Court to permit a party to cross-examination of his witness and does not contain any conditions and guidelines which may govern the exercise of such discretion. However, such discretion must be judiciously and properly exercised in the interests of justice. The Court may, in its discretion, permit the person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party. Such discretion has to be exercised by the Court before which the matter comes up judiciously on being satisfied that the witness really bears a hostile animus to the party calling him.''
22. In paragraph No.21 of the above cited decision, this Court has observed as under:-
''It appears that PW2 was examined in chief on 16.02.2010 and nearly after one month his chief-examination was continued and completed on 12.03.2010 and thereafter he was cross-examined by the first Accused on 8.4.2010 and his cross-examination was deferred on Petition for the cross-examination of A2. It is also pertinent to note here that the prosecution had been watching the way of giving evidence by PW2 both in chief as well as in cross-examination. If at all PW2 had deposed as against the case of prosecution that too contrary to his statement, which was recorded by the investigating officer under Section 161(3), Cr.P.C., it is for the prosecution to request the Court to permit the prosecution to treat him hostile to the prosecution case.''
23. In paragraph No.22 of the above cited decision, this Court has observed as under:-
''But it has not been done in this case immediately in the presence of the Trial Judge, before whom the veracity of PW2 was testified. But, after his transfer, the Memorandum, which is in question in the present Petition was filed before his successor in office. The same was vehemently objected to by the learned counsel for the Petitioner on the ground that the previous Trial Judge alone could visualise the demeanour and attitude of PW2 while deposing evidence and that the learned trial Judge, who is presiding over at present in the Trial Court would not be in a position to visualise everything. But, he can visualise the things only on the basis of the records. Under this circumstance, the counsel for the Petitioner has urged before this Court that the order passed by the learned trial Judge in the Memorandum on 18.9.2010 be necessarily set aside.''
24. Having taken into consideration of the relevant facts and circumstances, this Court in paragraph No.27 of the above cited decision has observed as under:-
''27. The reasoning assigned by the learned Trial Judge seems to be pre-conceived and it also goes against the fundamental rights of the Petitioner guaranteed under Articles 14 and 21 of the Constitution of India. Since the trial is in progress there must be some self- restrainment on the part of the Trial Court while passing any interlocutory orders. Because, insofar as the Criminal cases are concerned right of speedy trial, right of defence and right of legal aid are guaranteed under Article 21 of the Constitution of India. Articles 21 and 14 are the heart of the chapters and fundamental rights. They cover various aspects of the life of an individual, which includes the right of defence in a Criminal case. When such being the case, the order passed by the learned trial Judge seems to be perverse and it appears the Trial Court has also not exercised the discretionary power conferred under Section 154 of the Indian Evidence Act judiciously. Hence, the impugned order dated 18.9.2010 is liable to be set aside.''
25. This Court has clearly narrated the reasons under what circumstance the impugned order in the above cited order was set aside. The ratio laid down or the circumstances of the above cited case cannot be made applicable to the present case on hand, as the circumstances are distinguishable with the circumstances of the instant case on hand. Therefore, the decision of this Court in R.Srinath Vs. The State, by the Inspector of
Police SPE/CBI/BS & FC/Bangalore reported in 2011 (2) MWN (Cr.) 239 is not made applicable.
26. Keeping in view of the said fact, the present Criminal Original Petition is dismissed as the impugned order is perfectly within the bounds of Section 154 of the Indian Evidence Act, which does not require any interference of this Court. Consequently, connected Criminal Miscellaneous Petition is closed.
16.03.2017
Index:Yes/No Internet:Yes ssn
T.MATHIVANAN, J.,
ssn
To
1. XII Additional Special Judge for CBI Cases, XII Additional City Civil Court, Chennai.
2. The Inspector of Police, Central Bureau of Investigation, Anti-Corruption Bureau, Sastri Bhavan, Chennai-600 006.
CRL.O.P.No.4989 of 2017
and CRL.M.P.No.3726 of 2017