Rajasthan High Court - Jodhpur
Bhagwana Ram vs State Of Rajasthan on 16 February, 2024
Author: Madan Gopal Vyas
Bench: Madan Gopal Vyas
[2024:RJ-JD:7301] (1 of 6) [CRLMP-5405/2019]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 5405/2019
Bhagwana Ram S/o Shri Mangaram, Aged About 32
Years,R/o Village Jagsa Panchyat Samiti Balotra, Tehsil
Pachpadra, District Barmer. At Present Jr. Engineer
Jodhpur Vidhyut Vitran Nigam Limited, Kanana (Rural
Division, Balotra) Dist. Barmer.
----Petitioner
Versus
State Of Rajasthan, Through P.p.
----Respondent
For Petitioner(s) : Mr. Moti Singh
For Respondent(s) : Mr. Gaurav Singh, PP
HON'BLE MR. JUSTICE MADAN GOPAL VYAS
Judgment DATE OF JUDGMENT: 16/02/2024 The instant criminal miscellaneous petition under Section 482 of CrPC has been filed by the petitioner for quashing the order dated 07.09.2019 passed by the learned Special Judge, (Prevention of Corruption Act Cases), Jodhpur (hereinafter referred to as the learned Trial court) in Sessions Case No. 11/2015 arising out of FIR No. 227/2014 lodged at Police Station-ACB, CPS, Jaipur, District ACB Jodhpur for the offences punishable under Sections 7, 8, 13(1) and 13(2) of the Prevention of Corruption Act, 1988 by which the PW 1-Mohanlal Sutrakar (PW-1, for short) was declared hostile at the request of learned Public Prosecutor.
(Downloaded on 19/02/2024 at 08:52:58 PM) [2024:RJ-JD:7301] (2 of 6) [CRLMP-5405/2019]
2. Learned counsel for the petitioner submits that the order declaring PW-1 as hostile and permitting the Public Prosecutor to re-examine him is against the statutory provisions of law. It is submitted that if the witness does not stand upon the prosecution story, only then he can be declared hostile and his re-examination can be permitted. It is further submitted that once the cross examination has been conducted, thereafter the party who calls the witness is first supposed to re-examine the witness and thereafter, if the witness does not support his own case, the Court may, if it deems appropriate, declare him as hostile. It is also submitted that the learned Trial Court has not recorded any reason before permitting the re-examination of PW-1. Hence, the order dated 07.09.2019 is arbitrary, perverse and contrary to law and thus, deserves to be quashed and set aside.
3. Learned Public Prosecutor opposed the prayer made by learned counsel for the petitioner and submitted that there is no illegality in the impugned order.
4. Heard learned counsel for the parties and perused the material available on record.
5. It appears from the material available on record that PW-1 Mohanlal Sutrakar was examined as prosecution witness on 09.02.2018. After the examination-in-chief was over, the learned counsel for the petitioner cross-examined the said witness on 22.10.2018. After the cross- examination was over, the learned Public Prosecutor requested the Court orally to declare the said witness as (Downloaded on 19/02/2024 at 08:52:58 PM) [2024:RJ-JD:7301] (3 of 6) [CRLMP-5405/2019] hostile and prayed for his re-examination. It further appears from the record that the same was objected to by the learned counsel appearing for the defence and after considering the submissions made by the learned Public Prosecutor as well as the defence counsel, by the impugned order dated 07.09.2019, learned Trial Court allowed the request made by the learned Public Prosecutor, whereby the witness was declared to be hostile and learned Public Prosecutor was permitted to re-examine him. It further appears that the counsel for the petitioner filed an application to defer the cross-examination with a view to challenge the impugned order by taking recourse to appropriate legal remedies and the present petition is filed challenging the impugned order, as aforesaid.
6. In the present case, it appears from the deposition of PW-1 that he has supported the story of the prosecution. However, in cross-examination, PW-1 has answered certain more questions as were put up to him by the defence. On a perusal of the impugned order, it is apparent that the learned Trial Court has declared PW-1 as hostile on the oral request made by the learned Public Prosecutor on the ground that the witness has admitted to certain facts which are contrary to his deposition in his chief-examination.
7. Chapter X of the Indian Evidence Act, 1872 deals with Examination of Witnesses. The relevant provisions necessary for the disposal of present miscellaneous petition are reproduced below for ready reference: (Downloaded on 19/02/2024 at 08:52:58 PM)
[2024:RJ-JD:7301] (4 of 6) [CRLMP-5405/2019] "Section 137. Examination-in-chief.- The examination of a witness by the party who calls him shall be called his examination-in-chief.
Cross-examination.- The examination of a witness by the adverse party shall be called his cross- examination.
Re-examination.- The examination of a witness, subsequent to the cross-examination by the party who called him, shall be called his reexamination."
"Section 138. Order of examinations. -- Witnesses shall be first examined-in-chief, 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 to 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. "
"Section 154. Question by party to his own witness. - (1) The Court may, in its discretion, permit the person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party.
(2) Nothing in this section shall disentitle the person so permitted under sub-section (1), to rely on any part of the evidence of such witness."
As per Section 138 of the Evidence Act, if the party calling the witness so desires, it can proceed to re-examine the witness. Further, it is explained that the re-examination shall deal with the explanation of matters referred to in (Downloaded on 19/02/2024 at 08:52:58 PM) [2024:RJ-JD:7301] (5 of 6) [CRLMP-5405/2019] cross-examination. If any new matter is introduced in re- examination, then, with the permission of the Court, the adverse party may further cross-examine upon that matter. On the other hand, Section 154 of the Evidence Act confers a judicial discretion on the Court to permit cross examination of a party's own witness. However, such discretion is to be exercised judicially and in circumstances where the Court is of the opinion that the witness is not supporting its own case.
8. Thus, merely because the witness has stated certain facts in his cross-examination which are contrary to his examination-in-chief or has stated additional facts in his cross-examination, the Court would not be justified in declaring him as hostile before conducting his re- examination. Though it is true that there is no straight- jacket formula which prescribes the circumstances in which Trial Court can use discretion under Section 154, however, in the facts and circumstances of the present case, merely because the PW-1 has made statements in his cross- examination which are contrary to his statements in his chief-examination, it cannot be said that the witness has turned hostile. The learned Trial Court ought to have firstly proceeded with the re-examination of witness under Section 138 and then, if the witness did not support his own case, could have proceeded to declare him as hostile.
9. In view of the discussion made above, the present miscellaneous petition is allowed. The order dated (Downloaded on 19/02/2024 at 08:52:58 PM) [2024:RJ-JD:7301] (6 of 6) [CRLMP-5405/2019] 07.09.2019 passed by the learned Trial Court is quashed and set aside. The matter is remanded back to the learned Trial court to firstly conduct the re-examination of PW-1 and if PW-1 does not support the prosecution story, the Court may proceed in accordance with the provisions of the Indian Evidence Act.
10. Stay application also decided accordingly.
11. A copy of this order be sent to learned Trial Court by Email or FAX.
(MADAN GOPAL VYAS),J 491-CPG/-
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