Rakesh Mittal vs C.B.I., SPE, Dehradun

Lok Pal Singh, J

1) This criminal revision is directed against the order dated 23.04.2019 on application dated 15.04.2019 (paper no. 596B), whereby the Special Judge,

Anti Corruption, CBI, Dehradun has rejected the said application to exercise its jurisdiction under Sections 230 and 242(2) of Cr.P.C. to summon the

witness, as observed by this Court vide judgment and order dated 15.03.2019, in criminal revision no. 112 of 2019, Rakesh Mittal Vs C.B.I. and

another.

2) Facts leading to filing of present case are that the revisionist is facing CBI case no. 3 of 2006, titled as CBI Vs Prem Dutt Raturi & another, under

Sections 120B read with 420, 467, 471, 468 IPC and Section 13(2) read with 13(1)(d) of the Prevention of Corruption Act, registered at P.S. CBI,

SPE, Dehradun. Earlier an application was moved by the revisionist before the trial court stating that the public prosecutor is not producing the

witnesses as per the provisions contained in Section 230 and 242 of Cr.P.C. which affects the rights of the revisionist. The trial court rejected the

application filed by the revisionist. Then the revisionist was constrained to prefer a criminal revision no. 112 of 2019, titled as Rakesh Mittal Vs CBI

and others. This court having heard learned counsel for the parties was pleased to dismiss the said revision vide judgment and order dated 15.03.2019

having considered the fact that the order under challenge in the revision is an interlocutory order which does not affect the rights of the parties. It was

observed in said judgment and order that it is not always possible for the prosecution to produce the witnesses. However, the accused should be made

aware before adducing any evidence so that the accused may prepare its case for cross-examination. A witness should not be produced by giving

surprise to the accused. It was further observed that when a prosecution witness is available there is no requirement to summon the said witness. A

witness only can be summoned when witness is not aware of the date fixed or is not available to the prosecution. Further this Court had observed that

the trial is pending since long.

3) Subsequently, the revisionist moved an application before the trial court stating that in view of the observations made by this Court in paragraph 18

of the judgment and order dated 15.03.2019, passed in Criminal Revision no. 112 of 2019, that the judgment and order passed by this Court be

complied with and appropriate direction be issued to the learned prosecutor of the case. Vide impugned order dated 23.04.2019, the said application

has been rejected by the Special Judge (CBI) Anti Corruption observing that an application filed by the revisionist to comply with the provisions

contained in Section 230 and 242(2) of Cr.P.C. had already been dismissed and the order passed by the trial court has been affirmed by the High

Court and no direction has been issued to the trial court, thus the trail court does not find any grounds to issue direction to the public prosecutor to

examine the witnesses as per their chronology in the charge sheet. It is further observed that the accused has no such right to ask that a particular

witness be produced.

4) Having heard learned counsel for the parties, averments made in the application and the order passed by the court below, this Court if of the view

that as soon as the witness is produced before the court, the court should have examine the witness, but the fact remains that where law requires a

thing to be done in a certain manner, it has to be done in that manner or not at all. [Dhananjaya Reddy Vs State of Karnataka (2001) 4 SCC 9 and

State of U.P. Vs Singhara Singh & others, AIR 1964 Supreme Court 358].

5) A perusal of the record would reveal that the trial court is not conducting the trial as per the provisions contained in Section 230 and Section 242 of

Cr.P.C. The prosecution cannot put the accused on surprise by producing any of the witnesses of its choice from the charge sheet, ignoring the

chronology of the witnesses. However, if the witness who should have been examined as per the next witness of the charge sheet, the prosecution

can request the trial court that the next witness in the order is not available and the prosecution be permitted to examine the next witness in order, but

a prior permission from the trial court is required to the prosecution to examine a particular witness so that the accused may not be put to surprise. An

accused has a right to cross-examine the witness when a witness is produced, but if a witness on its turn is not produced by the prosecution and all of

a sudden a witness is produced and produced before the court without seeking permission of the court thereby breaking the chronological list of the

witness as given in the charge sheet that would definitely hamper the right of the accused to cross-examine the witness.

6) In view of the above, the criminal revision is allowed. The impugned order is hereby set aside. The court below is directed to examine the witness

as per the names depicted in the charge sheet and, in case, any particular witness is not available on a particular date prior information be provided to

the accused that on the next date a particular witness is to be produced so that the accused may get ready for cross-examination of that particular

witness, which is also the spirit contained in Sections 230 and 242 of Cr.P.C.