Munshi Ram Thappa vs Rattan Singh and Another

O.P. Sharma, J.—The question involved in this petition u/s 561-A of Cr.P.C. though short, but is of a considerable importance touching

upon the power of the trial Court to recall a prosecution witness who has already been examined for further cross-examination on the application

of the accused.

The accused who are two in number are facing trial for the offences punishable u/s 302 read with Section 149 of R.P.C. They are alleged to

have way laid the deceased-Ashok Kumar Thappa on 15-9-1992 while he was on his way to Jammu from Reasi on his motorcycle. Accused

party is alleged to have persuaded the deceased on a Maruti van bearing registration No. JK 02-9653. The occurrence according to the

prosecution was witnessed by P.Ws. Kewal Krishan and Rattan Lal. Both of them stand already examined and cross-examined. The examination-

in-chief of P.W. Kewal Krishan commenced on 29-4-1994, but the cross-examination concluded only on 27-3-1995. While the trial of the case

was nearing conclusion P.W. Kewal Krishan moved an application on 18-9-1998 supported by an affidavit stating therein that he be permitted to

narrate the true facts of the case as what he had stated earlier was not the true version of the occurrence. This application was rejected by the trial

Court on 21-2-1998. After the rejection of the application filed by the witness, accused party stepped in and filed an application to recall the

witness for cross-examination so that he could be confronted with the statement made by him in his affidavit dated 18-9-1998. This application

was allowed by the trial Court by passing order dated 14-1-1999 on the ground that his statement recorded in the Court and the statement about

the occurrence made in the affidavit are at variance.

The contention of Mr. Bali appearing for the petitioner is that the Court should not have passed the impugned order as it would amount to

allowing the witness to go back on his sworn testimony in the Court. The order impugned according to the learned counsel amounts to abuse of

process of the Court and would encourage the accused to stiffie the prosecution by winning over the witness either with money power or use of

force. The argument of Mr. J.P. Singh appearing for the accused is that since the witness has already sworn affidavit in which he has denied his

presence at the place of occurrence at the time of commission of crime, therefore, unless the accused are given chance to crossexamine him, the

truth remains a mystry. The learned Addl. Sessions Judge, argued the learned counsel was thus justified in recalling the witness as his re-

examination was essential to the just decision of the case.

u/s 540 of Cr.P.C. the Court has discretion to summon any person as witness or recall or re-examine any person already examined at any stage

of the inquiry or trial or other proceedings provided his evidence appears to it to be essential to the just decision of the case. The learned trial

Court has in the course of the order observed that the earlier statement of the witness being at variance with the averments made in the affidavit, it

is necessary to re-examine him for the just decision of the case.

Since the petition has been filed both u/s 561-A as also Under Sections 435/439 of the Code, first of all, question is whether the revision against

the order passed u/s 540 is maintainable, the question has been answered by the Division Bench of this Court in S.K. Mahajan and Etc. Vs.

Municipality, holding that :-

Whether or not a witness is to be examined under this section, the discretion entirely lies with the Court, though it may be obligatory on its part to

summon the witness in case his evidence appears to be essential for the just decision of the case,

Nevertheless (their Lordships further observed) (para 14) :

It is the requirement of the Court and not that of the party to see whether or not a witness is to be examined. Viewed thus, an order granting or

refusing the prayer of the party to have witness examined u/s 540 cannot be said to have determined any right of the parties and consequently fails

to acquire the flavour of a final order. It is an interlocutory order, pure and simple.

After this, the Bench held that no revision lies against the order passed u/s 540 of the Code because of the bar enacted under Sub-section (4-A)

of Section 435, Cr.P.C. This takes us to the question as to whether the order in fact amount to abuse of the process of the Court. In support of his

contention that the order is abuse of the process it relied on the decision of this Court in State Vs. Sheikh Mohamad Abdullah and Others, .

However, facts of the case being entirely different, the ratio is not applicable as shall be presently noticed after analysing the scope of Section 540

with reference to various decisions of the different High Courts. Ali, J. (as his Lordship then was) observed as under :-

...Before, however, going to the contents of the said letters, I may state certain undisputed facts. In the first place, the witness was examined by the

police before the committing Court. But nowhere did he give any indication regarding the existence of these letters although he must have been

aware of the presence of these letters which were with him all the time since he deposed regarding them in his evidence before the Sessions Court.

The dramatic fashion in which the witness suddenly appears a week after his evidence is concluded and asked the Court to take these letters in

evidence is a fact which speaks for itself. Secondly, the object mentioned in the application given by the witness for admitting the letters in evidence

is not that letters are essential to the just decision of the case, but is that they should be proved in order to show that what the witness is stating is

true and that his credit has been wrongly impeached by the accused in his cross-examination. To allow such a prayer would be to introduce a new

and dangerous practice leading to serious injustice to the accused and inordinate delay in the trial. If such a prayer is acceded to the result will be

that every witness will be given an opportunity of producing documents in order to destroy the effect of cross-examination.

There can be no quarrel with the preposition because the witness in the said case was trying to establish his credibility and not that he was

deviating from his earlier statement. Therefore, it does not help the petitioner. However, the facts of this case are identical with the facts of the case

decided by the High Court of Delhi in State (Delhi Admn.) v. Ramesh alias Ramesh Kumar 1990 (1) CCC 444. As a matter of fact my hunch is

that there has been systematic attempt to equate this case squarely with the facts of the case of Ramesh Kumar (supra) by first moving an

application on behalf of the witness and then by the accused. None the less, this hardly makes any difference so far as dictum of law is concerned.

The Supreme Court had an occasion to interpret the provisions of similar worded Section 540 of the previous Code in Jamatraj Kewalji Govani

Vs. The State of Maharashtra, and it was laid down that Section 540 is intended to be wide as the repeated use of the word 'any' throughout its

length clearly indicates. The section is in two parts. The first part gives a discretionary power but the latter part is mandatory. The use of the word

'may' in the first part and of the word 'shall' in the second firmly establishes this difference. It was laid down that as the section stands there is no

limitation on the power of the Court arising from the stage to which the trial may have reached, provided the Court is bona fide of the opinion that

for the just decision of the case, the step must be taken and this power is exercisable at any time.

In Mohd. Husain Umar Kochra etc. Vs. K.S. Dalipsinghji and Another etc., a question of recalling a witness, who had already been examined

came up for consideration. One P.W. Ali was examined as a witness and after his cross-examination had concluded the defence had moved an

application for recalling him for cross-examination. The request was declined. The plea taken by the defence for recalling the witness was that the

witness was repentant and wanted to say that he had given false evidence. The Supreme Court held that no ground was made out for recalling Ali

because there was no affidavit from Ali nor was there any other material showing that his testimony was incorrect in any material particular. The

Court emphasised that the Court has inherent power to recall a witness if it is satisfied that he is prepared to give evidence which is materially

different from what he had given at the trial, but there must be some material from which the Court could be satisfied that the witness should be

recalled for giving further statement, may be in contradiction with the statement already made by him.

A similar view was taken by the Allahabad High Court in Sukkhan v. State of U.P. (1988) 1 Crimes 245. In that case also after a witness had

been examined in the Court, he submitted an affidavit denying he had witnessed the occurrence. The Court allowed the application and summoned

the witness to confront him with his affidavit and also to explain his behaviour. Since the witness in this case had sworn the affidavit giving facts

which are in contradiction to what he had deposed in the Court, discretion exercised by the Court in recalling him for further cross-examination in

order to confront him with what he had earlier deposed in the Court, the order passed by the Addl. Sessions Judge is neither abuse of the process

of the Court not otherwise unnecessary to secure the ends of justice to invite exercise of inherent powers of this Court u/s 561-A of Cr.P.C. But in

case it appears that the witness has been won over and had gone back on his sworn testimony at the instance of the defence, the prosecution

would be well within its right to cross-examine him with the permission of the Court to illicit the truth. Even the Court has ample powers u/s 165 of

the Evidence Act to put any question to the witness. Finally, it is the Court which has to appraise the testimony to hold and find out whether his

earlier statement on oath or the affidavit commend acceptance because under law, evidence of even hostile witness is not shut out completely. The

duty of the Court is to sift grain out of chaff and this duty every Court must discharge to ensure that while innocent is not punished, the guilty does

not escape the dragnet of law by simply protracting the trial which more often than not generates sympathy in favour of the accused while

gruesome murder is forgotten. Looking to the snail's speed at which the trial of the case has proceeded since 26-5-1993 when the charge was

framed, one shudders to think whether it is the accused or the criminal justice system which is on trial. As students of law we must note that delay

in the trial of criminal case helps only the accused because either the witnesses disappear or may not be able to re-collect the events leading to the

commission of crime. Sometime sympathy is developed in favour of the accused and justice is satisfied for convenience. This is how long delay in

the disposal of cases affects criminal justice system and unless something is done, situation may go out of hand. Already a grave danger lurks in the

situation of eroding faith in the judicial system. Lest the system approaches the disaster point whereafter people would resort to extra-judicial

method to settle the score. Something is required to be done to retrieve the situation from the most glaring melody of long delay that takes place in

the disposal of case from which our judicial system suffers. The situation is not irretrievable, but what is necessary is proper guidance to the

subordinate Courts followed by an effective control to ensure speedy justice. Unfortunately, sessions trials do not get the same priority which used

to be their main thrust even though the law has been simplified. However, it is not the Presiding Officer alone, but the prosecution as well as

members of the elite bar who have to join hands and help to restore the criminal justice system to its old glamour and glory so that eroding faith in

the effectiveness of the rule of law is reinforced.

With the aforesaid observations, this petition is dismissed with a direction to the trial Court to proceed with the trial by fixing short dates and

conclude the same with reasonable dispatch. The case be taken up for further proceedings by the trial Court on 19-8-1999.