State by Inspector of Police, Ambasamudram vs Murugan and others

Maheswaran, J.—The Public Prosecutor has filed this petition to direct the Principal Sessions Judge. Tirunelveli, to grant permission to the Public Prosecutor, Tirunelveli, to treat P.W. 15, a witness examined in S.C. 148 of 1986 on the file of the Principal Sessions Judge, Tirunelveli, as hostile and to cross-examine him.

In the affidavit filed by the Inspector of Police, Ambasamudram, in support of the petition, the Inspector trace the facts of the case relating to S.C. 148 of 1986 now pending on the file of the Principal Sessions Judge, Tirunelveli, and the investigation done by him. It is not necessary to go into the details as regards the fast relating to the case. It is sufficient to point out in brief the facts leading to the filing of the final report.

On 8th October, 1985 at about 1.30 p.m. the deceased and P.W. 2 and one Velu Konar were returning from V.K. Puram Bazar. When they were about to enter a taxi accused 1 to 6 emerged from a nearby lane and accused 1 held the deceased, accused 2 to 5 who were armed with deadly weapons, inflicted injuries on the deceased. P.W. 2 who intervened was beaten by accused 6. The injured was taken to the police station by P.Ws. 1 to 3, where he gave a complaint and it was registered in Crime No. 269 of 1985 on the file of the V.K. Puram Police Station. The injured were admitted in the hospital later. Dr. S. K. Subramaniam, who was examined as P.W. 9, examined the injured and admitted him as an in-patient and the injured died at 3.05 p.m. on the tame day. The deponent of the affidavit conducted inquest over the dead body. He examined several witnesses and arrested Accused 1, 4 and 6 on 11th October, 1985, while the other accused surrendered before court. Accused 4 and 6 gave confession statements voluntarily and in pursuance of that confession, anaruval and a stick were recovered. Accused 2 also gave a statement voluntarily. The Inspector laid the final report before the Judcial Second Class Magistrate, Ambasamudram.

During the course of trial before the Principal Sessions Judge, Tirunelveli, P.W. 15 a witness, who has earlier stated in his statement recorded under S. 161(3) Crl. P.C., that accused was absent from duty in the mill where P.W. 15 is employed as Labour Officer, reiterated his statement and said in chief-examination that accused 2 was absent from the mill. But, in cross-examination, he deposed that on 8th October, 1985, the date of occurrence, accused 1 discussed with him about the insurance scheme at 10.30 a.m. and again between 12.30 and 1.45 p.m. This statement in cross-examination, according to the prosecution, destroyed its case that accused 1 was present at the scene of occurrence and held the deceased while the other accused A2 to A5, inflicted injuries on the deceased. The learned Public Prosecutor, therefore, prayed for permission before the Sessions Judge, to treat the witness as hostile and to cross-examine him, but the Session Judge refused to permit the Public Prosecutor to cross-examine the witness P.W. 15, on the ground that P.W. 15 has not gone back on his statement recorded under S. 161(3), Crl. P.C. The learned Sessions Judge has made a note of this order in the deposition of P.W. 15, recorded by him. According to the prosecution, P.W. 15 has spoken in cross-examination about the presence of accused 1 and as accused 1 was the leader of the. Union of the Mill, P.W. 15 has obliged the Union Leader by deposing falsely and to test the veracity of the witness, he must be subjected to cress examination.

The first contention of Mr. Vanama-malai is that the High Court cannot exercise the powers of revision under S. 482, Crl. P.C. It is well settled that where no specific provision is made in the Code of Criminal Procedure, to challenge the order of the Sessions Judge refusing to grant permission to treat a witness as hostile and to cross-examine him and when no other remedy is available to the litigant, the High Court can exercise its power under S. 482, Crl. P. C. It is no doubt true that it is done sparingly. I am unable to persuade myself to hold that the order passed by the Sessions Judge refusing to treat the witness as a hostile witness is a final order against which a revision lies. It appears to me to be an order interlocutory in nature and that order does not give finality to the proceedings and the proceedings have to go on whether the witness is treated as hostile or not. The observations made by the Supreme Court in Madhu Limaye v. State of Mahrashtra AIR 1978 S.C. 487, can be extracted with much use. Their Lordships observed :

But then if the order assailed is purely of an interlocutory character which could be corrected in exercise of the revisional power of the High Court under the 1898 Code, the High Court will refuse to exercise its inherent power. But in case the impugned order clearly brings about a situation which is an abuse of the process of the court or for the purpose of securing the ends of justice interference by the High Court is absolutely necessary, then nothing contained in S. 397(2) can laminate or affect the exercise of the inherent power by the High Court.

It is manifest, therefore, that in order to secure the ends of justice, the High Court can interfere under S. 482, Crl. P.C., notwithstanding anything contained in S. 397(2) Crl.P.C. The impugned order in this case brings about a situation where the prosecution cannot cross examine its own witness even though that witness has destroyed the prosecution case in cross-examination. In Raj Kapoor and Others Vs. State and Others, the Supreme Court, pointed out that where it is more than purely an interlocutory order and less than a final disposal, the inherent powers can be exercised. Under such circumstances, there is no impediment to exercise the powers under S.482, Crl. P.C. As I have taken this view, it is not necessary to enter into a discussion on the question whether the impugned interlocutory order, though net conclusive of the main dispute, is conclusive of the subordinate matter in which it deals.

We may now advert to the quest ton whether the order refusing to treat P.W. 15 as hostile and not permitting the prosecution to cross examine him, is a correct order, The reason given by the Sessions Judge appear to be that the witness has not gone back on his. statement recorded under S. 161(3), Crl. P C., that he has not stated any thing against the evidence recorded under S. 161, Crl. P.C., ill respect of the matter for which he is summoned as a witness to depose and that the witness could be treated as hostile only if he does not stick to the statement alleged to have been given by him to the Police during the investigation. This view of the Sessions Judge is wrong. In G.S. Bakshi v. State 1979 1 S.C.J. 530 a witness who gave evidence which is destructive of the prosecution ease was not permitted to be treated as a hostile witness. The, Supreme Court observed :

The only reason given by the learned Judge was that the deposition in the court is not contrary to any earlier statement. When a prosecution witness turns hostile by stating something which is destructive of the prosecution case the projection is entitled to pray that the witness be treated as hostile.

In Shri Rabindra Kumar Dey Vs. State of Orissa, the Supreme Court referring to the Court''s discretion that has to be exercised by court pointed out that the Court before permitting a party calling the witness to cross-examine must scan and weigh the circumstances properly and should not exercise this discretion, in a casual or routine manner. "AS I earlier pointed out the order of the Sessions Judge does not show that he has ''scanned and weighed the circumstances properly� but has refused to permit the prosecution to cross-examine the witness on the only ground that the witness has not said anything contra to his earlier statement recorded under S. 161(3) Crl. P.C. The Supreme Court also pointed out that the mere fact that he was declared hostile and allowed to be cross-examined, would not make the witness an unreliable witness so as to exclude his evidence altogether, but his evidence remains admissible in trial and there is no legal bar to base a conviction upon his testimony if corroborated by other reliable evidence.

In Sat Paul Vs. Delhi Administration, the Supreme Court pointed out that the discretion conferred by S. 154 on the court is unqualified and untrammelled and is apart from any question of hostality and that it is to be liberally exercised whenever the court from the witness''s deamenour, temper, attitude, bearing or the ten of and tendancy 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.

In this case, P.W. 15 has been summoned as a witness to prove that accused-2 was absent from the Mill on the date of occurrence. He did speak to that fact in chief-examination. But, in cross-examination, it was elicited from him that accused 1 was talking with P.W. 15, in the mill between 12.30 p.m. and 1.45 p.m. on the date of occurrence. This statement in cross examination as regards the presence of accused 1 between 12.30 p.m. and 1.45 p.m. was wholly unconnected with the examination in chief of P.W. 15 the prosecution case is that as a murder took place at about 1.30 p.m. the presence of accused 1 at the mill till 1.45 p.m. would shatter the ease of the prosecution, that accused 1 held the hands of the deceased while the other accused inflicted the injuries. The defence has elicited a fact in support of the case that accused 1 was not present at the scene of occurrence or that accused 1 was engaged in conversation with P.W. 15 at the mill at the relevant time of murder. In such a circum stances, it would be improper exercise off discretion under S.154 of the Evidence Act for the Sessions Judge to refuse permission to the prosecution to cross-examine on the facts so elicited. The prosecution has to prove that that statement of P.W. 15 is wrong so that they can prove their case that accused 1 held the deceased and others inflicted injuries. For these reasons, the order of the Sessions Judge is quite unsustainable and has to be set aside and is hereby set aside-He is directed to treat P.W. 15 as a hostile witness and permit the prosecution to cross-examine him. He will dispose of the case as expeditiously as possible.