Court No. - 81
Case :- APPLICATION U/S 482 No. - 43089 of 2019 Applicant :- Ram Kishun Opposite Party :- State of U.P. and Another Counsel for Applicant :- Kamlesh Kumar Tiwari Counsel for Opposite Party :- G.A.
Hon'ble Dinesh Kumar Singh-I,J.
Heard Sri Kamlesh Kumar Tiwari, learned counsel for the applicants Sri G.P. Singh, learned A.G.A. appearing for the State and perused the record.
This application under Section 482 Cr.P.C has been moved with a prayer to quash the order dated 03.10.2019 passed by Special Judge (Anti- Corruption), Court NO. 5, Gorakhpur in Special Trial No. 636 of 2018 (State vs. Ram Kishun) arising out of Case Crime No. 308 of 2018 under section 7 Anti-Corruption Act, Police Station Chauri Chaura, District Gorakhpur and also a prayer is made to stay the effect and operation of the order dated 03.10.2019 till the disposal of this application.
It is argued by the learned counsel for the applicant that the order dated 03.10.2019 which has been passed by the trial court on an application given by the DGC/prosecution under section 154 of the Indian Evidence Act for recalling the PW6 Shiv Nath for further cross examination, has been wrongly allowed and the order dated 03.10.2019 fixing 04.10.2019 for further cross-examination of the said witness is also erroneous which are against the provision of law and they need to be set aside, because they have been passed arbitrarily without giving any reason. He has placed reliance on a judgment of Hon'ble Supreme Court in Gura Singh vs. State of Rajasthan, 2000 LawSit (SC) 1870 and he has relied upon paragraph 12 of the said judgment, which is quoted as under:
"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 a 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 witnesses by the party calling him is governed by the provisions of the Indian Evidence Act, 1872. Section 142 requires that leading questions cannot be put to the witness in examination-in-chief or in re- examination except with the permission of the court. The court can, however, permit leading question as to the matters which are introductory or undisputed or which have, in its opinion, already been sufficiently proved. Section 154 authorises the court in its discretion to permit the person who calls a witness to put any question to him which might be put in cross-examination by the adverse party. 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. Extensively dealing with the terms "hostile, adverse and unfavourable witnesses" and the object of the provisions of the Evidence Act this Court in Sat Paul v. Delhi Administration [AIR 1976 SC 294] held:
"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 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 (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 demeanor, temper, attitude, bearing, or the tenor and tendency of his answers, or from a perusal of his previous inconsistent statement, or otherwise, thinks 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.
It is important to note that the English statute differs materially from the law contained in the Indian Evidence Act in regard to cross-examination and contradiction of his own witness by a party. Under the English Law, a party is not permitted to impeach the credit of his own witness by general evidence of his bad character, shady antecedents or previous conviction. In India, this can be done with the consent of the court under S.155. Under the English Act of 1865, a party calling the witness, can 'cross-examine' and contradict a witness in respect of his previous inconsistent statements with the leave of the court, only when the court considers the witness to be 'adverse'. As already noticed, no such condition has been laid down in Ss.154 and 155 of the Indian Act and the grant of such leave has been left completely to the discretion of the court, the exercise of which is not fettered by or dependent upon the 'hostility' or 'adverseness' of the witness. In this respect, the Indian Evidence Act is in advance of the English Law. The Criminal Law Revision Committee of England in its 11th Report, made recently, has recommended the adoption of a modernized version of S.3 of the Criminal Procedure Act, 1865, allowing contradiction of both unfavourable and hostile witnesses by other evidence without leave of the court. The Report is, however, still in favour of retention of the prohibition on a party's impeaching his own witness by evidence of bad character.
The danger of importing, without due discernment, the principles enunciated in ancient English decisions, for, interpreting and applying the Indian Evidence Act has been pointed out in several authoritative pronouncements. In Prafulla Kumar Sarkar v. Emperor, ILR 58 Cal 1404 (AIR 1931 Cal. 401), (1931 (32) Cri LJ 768) (FB) an eminent Chief Justice, Sir George Rankin cautioned, that 'when we are invited to hark back to dicta delivered by English Judges, however, eminent, in the first half of the nineteenth century, it is necessary to be careful lest principles be introduced which the Indian Legislature did not see fit to enact'. It was emphasized that these departures from English Law 'were taken either to be improvements in themselves or calculated to work better under Indian conditions'.
xxxxx xxx 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 stand 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 credit worthy 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 a matter of prudence, discard his evidence in toto."
Learned A.G.A. has vehemently opposed the prayer for quashing of the charge sheet.
I have gone through the proposition of law as has been interpreted by Hon'ble Apex Court in the above cited case and found that it has been clearly mentioned in it that the matter to cross-examine a witness has been left entirely to the discretion of the Court and the Court has unqualified and untrammelled power to permit such cross-examination and it should be exercised liberally. In case at hand, the application which was moved by the prosecution side dated 03.10.2019 contained that the witness PW6 Shiv Nath has made statements in cross-examination, which are not in consonance with the statements given by him in examination-in-chief, therefore, several questions are required to be asked and hence, permission may be allowed. Accordingly, after consideration the said application has been allowed without giving detailed reasons. The Court which is trying the case is the best judge to decide as to what discretion should be exercised in order to reach truth and in this case the said discretion has been exercised by the trial court and I do not find any infirmity in the impugned order.
The prayer for quashing the impugned order is refused. Application stands rejected.
Order Date :- 26.11.2019/AU