Mer Veja Atiya Modhwadiya vs State of Gujarat

H.N. Devani, J.—This application u/s 482 of the Code of Criminal Procedure, 1973 (the Code) is directed against the order dated 27th February 2009 passed by the learned Additional Sessions Judge & Presiding Officer, Fast Track Court, Porbandar below Exhibit 48 in Sessions Cases No. 29 of 2007 and 12 of 2008, whereby the application made by the petitioner to recall the prosecution witness No. 1, has been rejected.

The facts stated briefly are that one Jivabhai Maldebhai Modhvadiya lodged a first information report on December 14, 2006, which came to be registered vide Bagvadar Police Station I - C.R. No. 106/2006 for the offences punishable under Sections 143, 147, 148, 149, 302, 504 read with Section 34 of the Indian Penal Code and Section 135 of the Bombay Police Act, 1951. Upon submission of the chargesheet, the case was committed to the Sessions Court and came to be registered as Sessions Case No. 29 of 2007. However, in connection with an absconding accused who was arrested later in point of time, a supplementary challan came to be filed and upon committal, the same was registered as Sessions Case No. 12 of 2008. It appears that both the cases have been directed to be tried together and accordingly, both the cases are being tried together and common evidence is being recorded in both the Sessions Cases.

The prosecution examined the first informant as prosecution witness No. 1 at exhibit 39. After the examination-in-chief was completed, the learned advocate for the petitioner-accused No. 1 cross-examined the said witness and the said cross-examination was completed on 2nd January 2009. On behalf of the accused No. 4, the learned advocate appearing on his behalf, cross-examined the said witness and after having completed the cross-examination, the said witness was further cross-examined by the learned advocate appearing on behalf of the accused No. 2 and 5 which was completed on 20th January, 2009, and thereafter, by the learned advocate for the accused No. 3, and the said cross-examination came to be completed on 22nd January 2009. It is the case of the petitioner, that when the learned advocate for the petitioner received a copy of the deposition of the said prosecution witness No. 1, the learned advocate found that the said witness had been cross-examined by the learned advocates for the other co-accused in such a manner so as to create serious prejudice to the case of the present petitioner. Therefore, the learned advocate for the petitioner submitted an application Exhibit 48 for recalling the said witness on 5th February, 2009. The learned Special Public Prosecutor submitted objections against recalling the said witness, mainly on the ground that the petitioner wanted to delay the proceedings and sufficient opportunity had already been given to the petitioner to cross-examine the said witness. The learned Additional Sessions Judge vide the impugned order dated 27th February 2009, dismissed the application. Being aggrieved, the petitioner has moved the present application u/s 482 of the Code.

Mr. B.M. Mangukia, learned advocate for the petitioner has submitted that the learned Judge has failed to appreciate that each of the accused is entitled to cross-examine the witness in respect of the answers given by the witness of the prosecution to a query put by the learned advocates for the co-accused. It is submitted that if such opportunity is not given, serious prejudice can be caused to the said accused, since the other accused would try to save their skin by leading and misleading the prosecution witnesses in a direction that would result in exoneration of the said accused from the alleged offence and involve the other accused in the said offence. It is submitted that the learned Sessions Judge has failed to appreciate the provisions of Sections 137 and 138 of the Indian Evidence Act.

Reliance is placed upon a decision of the Supreme Court in C.T. Muniappan v. State of Madras AIR 1961 SC 175, to submit that the accused is entitled in law to put forward a question by way of cross-examination in respect of what the witness has stated in reply to the question put to him in cross-examination by the co-accused. It is contended that each accused is entitled in law to test the evidence given against him by a prosecution witness by cross-examination and such cross-examination need not be limited only what has been stated by him in examination-in-chief. It is submitted that the impugned order passed by the learned Additional Sessions Judge is not in consonance with the law laid down by the Apex Court in the decision cited hereinabove. It is further submitted that one of the grounds for rejecting the application is that the petitioner wanted to unduly delay the proceedings. It is submitted that the petitioner is himself an under-trial prisoner and would have no reason to delay the trial. It is further submitted that on the first available opportunity, the learned advocate for the petitioner had given the application for further cross-examination by recalling the said witness and that, on no occasion had the proceedings been delayed on account of default on part of the petitioner or his learned advocate. It is submitted that, in any case, it is the right of the petitioner to cross-examine the said witness in respect of the evidence which was brought on record by way of cross-examination on behalf of the other accused. That the right of the petitioner being a substantial right, the petitioner is entitled to cross-examine the said witness in connection with the new evidence which has come on record. It is, accordingly, submitted that the impugned order passed by the learned Additional Sessions Judge being contrary to the statutory provisions, is required to be quashed and the application made by the petitioner for cross-examining the said witness deserves to be allowed.

On the other hand, Mr. D.C. Sejpal, learned Additional Public Prosecutor has opposed the application. It is submitted that during the course of cross-examination of the said witness by the learned advocates for the co-accused, the learned advocate for the petitioner had not raised any objection and that, recalling of the witness would unduly delay the trial. It is further submitted that, even otherwise, the application of the petitioner is devoid of merit. Reliance is placed upon a decision of the Supreme Court in Mishrilal and Others Vs. State of M.P. and Others, It is, accordingly, submitted that the impugned order passed by the learned Additional Sessions Judge being just, legal and proper, does not call for any intervention by this Court.

A perusal of the application Exhibit 48 shows that it is the case of the petitioner that the petitioner has not had an opportunity of cross-examining the first informant in connection with the evidence which has come on record upon cross-examination of the said witness by the learned advocate for the co-accused. It is stated in the application that the said witness had stated certain facts in the cross-examination conducted on behalf of the petitioner, whereas there were significant contradictions and inconsistencies in the facts which had come on record during the cross-examination of the said witness by the learned advocates for the co-accused. That the petitioner has not had an opportunity of contradicting or challenging the said facts by way of cross-examination. During the course of cross-examination by the learned advocates for the co-accused, certain new facts have come on record which were not disclosed either in the first information report or in the chargesheet papers. That such facts had also not been disclosed during the course of examination-in-chief, hence, there was no opportunity for the petitioner to cross-examine the said witness in connection with those facts or to contradict the same and unless, the petitioner contradicts or challenges the said evidence or tests the veracity of the said witness in connection with the said facts, to point out that the testimony of the said witness is not creditworthy and bring his defence on record, the defence of the petitioner is likely to be prejudiced. It is further stated in the application that the new facts which have come on record upon cross-examination of the said witness by the learned advocates for the co-accused, adversely affect and are prejudicial to the petitioner. It is further stated in the application that so far no other witness has been examined, hence, by allowing the application, no prejudice is likely to be caused to the prosecution, whereas by not permitting the petitioner to cross-examine the said witness, his defence is likely to be highly prejudiced. It is on these grounds, that the petitioner had moved the application for recalling the said witness for cross-examination.

As can be seen from the impugned order passed by the learned Additional Sessions Judge, the learned Judge has observed that the petitioner has not stated in the application as to which question that was put to the witness while cross-examining him is prejudicial to him and that, no facts have been stated as to what is the nature of evidence which has come on record which is prejudicial to the petitioner. The learned Judge was of the view that if such practice of permitting recalling of witness for cross-examination in connection with the evidence which has come on record after the cross-examination of the said witness is already over insofar as the said accused is concerned, there would be no end to recording of evidence and when the accused are behind bars, for such wrong reasons the trial cannot be delayed. The learned Judge was of the view that the decision of the Supreme Court has been rendered in the peculiar facts of the said case and would have no applicability insofar as the facts of the present case are concerned. The learned Judge has observed that the learned advocate for the petitioner was present when the cross-examination of the said witness had been conducted by the learned advocate for the other accused, however, at the relevant time, she did not raise any objection to any question being asked and also did not seek to cross-examine the said witness immediately upon the conclusion of cross-examination by the learned advocate for the other accused. The learned Judge has also observed that this is not a fit case for recalling a witness in exercise of powers u/s 311 of the Code.

From the facts noted hereinabove, it is apparent that it is the case of the petitioner that certain new facts have come on record during the course of cross-examination of the first informant who is the prosecution witness No. 1 by the learned advocates for the co-accused and that there are certain contradictions and inconsistencies in the testimony of the said witness in the cross-examination on behalf of the petitioner as compared to the cross-examination conducted by the learned advocates for the co-accused. The petitioner wants to bring these contradictions and inconsistencies on record with a view to show that the evidence of the said witness is not creditworthy. Besides, it is the case of the petitioner that certain facts have come on record which would be prejudicial to the petitioner and as such, it is imperative that the said witness is cross-examined in connection with the new evidence that has come on record. The learned Additional Sessions Judge has observed that the petitioner has neither stated in the application nor in the oral submissions made by him, as to what is the nature of the evidence which has come on record which is prejudicial to him and what is the nature of the evidence that he wants to bring on record. The learned Judge was also of the view that the facts do not call for any exercise of powers u/s 311 of the Code for recalling the witness. In the opinion of this Court, the learned Additional Sessions Judge has misdirected himself in holding that the petitioner has not stated what is the nature of evidence which has come on record and which is prejudicial to the petitioner, inasmuch as, if the learned advocate were to disclose the contradictions before hand and also disclose points in connection with which she desires to cross-examine the said witness, the same would amount to disclosing the defence of the petitioner in advance and would prejudicially affect the right of the petitioner to cross-examine the said witness. The learned Judge has failed to appreciate that the case of the petitioner even in the application is that there are certain contradictions in the evidence of the witness in the cross-examination conducted on behalf of the petitioner and the cross-examination made on behalf of the other co-accused and that he would like to cross-examine the said witness in relation thereto and bring the contradictions on record which would also affect the credibility of the said witness. Insofar as the finding of the learned Judge that this is not a fit case for recalling the witness in exercise of powers u/s 311 of the Code is concerned, the same is misconceived, inasmuch as the learned Judge has failed to appreciate that the application made by the petitioner is not u/s 311 of the Code, but that the petitioner has merely asserted his right to cross-examine the said witness in connection with the new facts which have come on record during the course of cross-examination on behalf of the other accused. This right, is a right which flows from the provisions of Sections 137 and 138 of the Evidence Act. In this connection, it may be pertinent to refer to the provisions of Section 138 of the Indian Evidence Act, 1872, which reads as under :

Order of examinations - Witnesses shall be first examined, then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined.

The examination and cross-examination must relate to relevant facts, but the cross-examination need not be confined to the facts, of which the witness testified on his examination in-chief.

Direction of re-examination - The re-examination shall be directed to the explanation of matters referred to in cross-examination; and if new matter is by permission of the Court, introduced in re-examination, the adverse party may further cross-examine upon that matter.

On a plain reading of the provisions of Section 138 of the Evidence Act, it is apparent that the examination and cross-examination must relate to relevant facts, but the cross-examination need not be confined to the facts which the witness testified on his examination in chief. In the circumstances, if new facts have come on record on cross-examination of the said witness on behalf of the other co-accused, the cross-examination made on behalf of the petitioner need not be confined to the facts to which the said witness testified on his examination in chief, but would extend to the facts which have been disclosed during the course of cross-examination on behalf of the other co-accused. Thus, this right flows from the provisions of Section 138 of the Indian Evidence Act and is independent of the power of the Court to summon a material witness or examine a person present u/s 311 of the Code.

The Apex Court in the case of C.T. Muniappan v. State of Madras (supra) has held thus:

[6] The only question of law raised before the High Court was that evidence of the witnesses brought out in cross-examination on behalf of Kumaraswami could not in law be relied upon as against this appellant as the appellant had no opportunity to cross-examine these witnesses again. The High Court rejected this contention. Before us it has been urged that the view taken by the High Court in this matter was wrong. It is argued that Section 137 and 138 of the Indian Evidence Act do not contemplate any such further cross-examination of a prosecution witness. There can be no doubt that each accused is entitled in law to test the evidence given against him by a prosecution witness by cross-examination. Section 137 does not say that such cross-examination has to be limited only to what has been stated by the prosecution witness in examination-in-chief. Indeed Section 138 mentions categorically that ''the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief'' nor is there anything to justify the conclusion that once the right of cross-examination has been exercised after charge, it cannot be exercised again. While it is true that Section 137 and Section 138 do not in words speak of a further round of cross-examination, there is neither in these Sections nor anywhere else in the Evidence Act anything to bar the accused from exercising his right of cross-examination afresh if and when the prosecution witness makes a further statement of facts prejudicial to him.

[7] In our opinion, the High Court was right in its view that the accused was in law entitled to put further questions to this prosecution witness by way of cross-examination in respect of what he had stated in reply to Kumaraswami''s counsel.

The Apex Court has, therefore, held in the above referred decision that while it is true that Sections 137 and 138 of the Indian Evidence Act do not in words speak of a further round of cross-examination, there is neither in these Sections nor anywhere else in the Evidence Act anything to bar the accused from exercising his right of cross-examination afresh if and when the prosecution witness makes a further statement of facts prejudicial to him.

In the circumstances, the petitioner is, in law, entitled to put further questions to this prosecution witness by way of cross-examination in respect of what he has stated in reply to in cross-examination by the learned advocates for the co-accused. The learned Additional Sessions Judge was, therefore, not justified in rejecting the application of the petitioner.

The decision of the Apex Court in Mishrilal and Ors. v. State of M.P. and Ors. (supra) on which reliance has been placed by the learned Additional Public Prosecutor, does not support the case of the prosecution inasmuch as, in the facts of the said case, the facts were entirely different wherein a witness was sought to be re-examined to confront him with a statement made by him subsequently before another forum after the witness was examined in chief and cross-examined fully.

Insofar as the question of delay in the conduct of the trial is concerned, on facts, there does not appear to have been any such delay as to bar the petitioner from exercising his right to cross-examine the said witness. Besides, in a case of this nature, it is imperative that the truth comes on record and, the accused cannot be denied his statutory right merely on the ground that permitting him to exercise statutory right may cause slight delay in the trial.

For the foregoing reasons, the application succeeds and is, accordingly, allowed. The impugned order dated 27th February 2009 passed by the learned Additional Sessions Judge & Presiding Officer, Fast Track Court, Porbandar below Exhibit 48 in Sessions Cases No. 29 of 2007 and 12 of 2008, is hereby quashed and set aside. The application Exhibit 48 is allowed. Rule is made absolute accordingly. Interim relief granted earlier stands vacated.

Direct Service is permitted.