IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 24TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO. 11325 OF 2019 (GM-CPC) BETWEEN:
RAJIV VIJAYASARATHY RATNAM, AGED ABOUT 42 YEARS, S/O R.K.VIJAYASARATHY, NO.1619, VAISHNAVI, 5TH B CROSS, BSK 1ST STAGE, 2ND BLOCK, BANGALORE – 560 050.
… PETITIONER (BY SRI. JAYAKUMAR S PATIL, SENIOR COUNSEL A/W SRI. ABHILESH J, ADVOCATE) AND:
SUDHA SEETHARAM, W/O SRI S K SEETHARAMU, AGED ABOUT 63 YEARS, #48, MATHRU SADANAM, 10TH MAIN, 16TH CROSS, MALLESHWARAM, BENGALURU – 560 055.
(BY SRI. ABHINAV RAMANAND, ADVOCATE) … RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 08.03.2019 PASSED BY THE HON’BLE XLI ADDL. CITY CIVIL AND SESSIONS JUDGE, AT BENGALURU (CCH-42) IN O.S.NO. 1305/2013(ANNEXURE-F) THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDER, THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:
ORDER Petitioner being the plaintiff in a fiercely prosecuted money suit in O.S.No.1305/2013 is knocking at the doors of Writ Court grieving against the order dated 08.03.2019, a copy whereof is at Annexure-F, whereby the learned XLI Addl. City Civil Judge, Bengaluru having rejected his application filed u/s.145 & 155(3) of the Indian Evidence Act,1872, has denied permission to him to cross examine DW-2 in respect of the subject criminal case arising from FIR No.18/2012 registered by the Halasur Gate Women’s Police Station. After service of notice respondent having entered appearance through her counsel, resists the writ petition.
2. Brief facts of the case are:
(a) Petitioner-plaintiff happens to be the son-in-law of the defendant-respondent. The suit is for the recovery of INR 26 lakh along with interest; the respondent has filed her Written Statement resisting the suit; on 24.09.2013 the learned trial Judge has framed issues and on 06.04.2016 additional issue also has been framed;
(b) the respondent had filed a private complaint in PCR No.2116/2016 against the parents of the petitioner in February 2016 alleging siphoning of the money; these criminal proceedings were stayed by this Court in Crl.P.No.3675/2016; later they came to be quashed by the Apex Court in S.L.P(Crl) Diary No.1434/2018, vide Order dated 15.02.2019, inter alia holding that the dispute was civil in nature; and, (c) respondent’s application dated 19.01.2017 filed under Order I Rule 10(2) of C.P.C., 1908 for impleading petitioner’s parents as additional defendants to the suit was negatived by the trial Court on 06.10.2018; the respondent being the defendant got examined his GPA Holder Mr.S.K.Seetharamu as DW-1; one Mr.Narayana was examined as DW-2; the learned trial Judge having disallowed two recorded questions as being irrelevant, later has rejected petitioner’s application for cross examining the said witness. This happens to be the subject matter of this writ petition.
3. Having heard the Learned counsel for the parties and having perused the petition papers, reprieve needs to be granted to the petitioner for the following reasons:
(i) in a money suit which has some cognate facts giving rise to criminal case between the parties, the statements made by the parties and others concerned to the police under Section 161 of Cr.P.C., 1973, may constitute relevant evidence under Section 9 of the Evidence Act, 1872, if they throw some light on the facts in issue or the facts relevant to the facts in issue; the reasoning of the Court below that such statements are not relevant is unsustainable; the Apex Court in the case of KHATRI & OTHERS VS. STATE OF BIHAR popularly known as Bhagalpur Blinding Case, (1981) 2 SCC 493, at para 3 has observed as under:
“…Protection against the use of statement made before the police during investigation is, therefore, granted to the accused by providing that such statement shall not be allowed to be used except for the limited purpose set out in the proviso to the section, at any inquiry or trial in respect of the offence which was under investigation at the time when such statement was made. But this protection is unnecessary in any proceeding other than an inquiry or trial in respect of the offence under investigation and hence the bar created by the section is a limited bar. It has no application, for example in a civil proceeding or in a proceeding under Article 32 or 226 of the Constitution and a statement made before a police officer in the course of investigation can be used as evidence in such proceeding, provide it is otherwise relevant under the Indian Evidence Act. …”
(ii) the contention of the respondent that DW2 is not the person who has made any statement before the police in the subject criminal case and therefore the statement made by others cannot be confronted to him, appears to be too farfetched an argument apart from being preposterous inasmuch as it is for the said witness to take a call on the questions to put to him in the cross examination; however, the learned trial Judge having branded the two questions as being irrelevant, there was no say from the witness at all; ordinarily, the scope of cross examination by its very nature is much wider than that of examination-in-chief, has long been well settled; ordinarily, the trial Judges should not have knee-jerk reaction to the questions put in cross examination; it is prudent to await the response of the witness thereto and thereafter they should take a decision as to the relevancy and admissibility of such questions; this important aspect has been lost sight of by the court below; thus the impugned order is infected with a legal lacuna of great magnitude to the prejudice of the petitioner warranting indulgence of this court;
(iii) the vehement contention made on behalf of the respondent that Sec.145 of the Evidence Act fixes the contours of cross examination is broadly true; however, the scope of cross examination depends upon the facts and circumstances of each case and the role of the witnesses examined therein; the contention that invariably a witness can be confronted with the statement made to police u/s.161 of Cr.P.C. if he is the author of the statement, appears to be too wide a proposition which may admit several exceptions which this Court does not want to undertake enumeration; suffice it to say, that there may be cases wherein a statement made by others to the police may be put to a witness who knows about the same or of the circumstances that led to making of such a statement; he could be a witness to such a statement being made before the police too; in such circumstances his say from the witness box may assume relevance. This aspect also having not being kept in mind by the Court below, its impugned order is legally unsustainable.
In the above circumstances, this writ petition succeeds; a Writ of Certiorari issues quashing the impugned order; petitioner’s subject application having been favoured the Court below shall permit him to cross examine DW-2 in relation to the subject criminal case to the extent the same throws light on the facts in issue or the facts relevant to the facts in issue.
However, discretion lies with the learned trial Judge in ensuring that the cross examination does not transcend the contours of the case, keeping in view all its facts and circumstances. The petitioner is also warned that this order shall not be construed as a carta blanca of cross examination.
No costs.
Sd/- JUDGE Snb/