Farhan vs State Of U.P.
2022 Latest Caselaw 20801 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 92
 

 
Case :-CRIMINAL MISC. BAIL APPLICATION No.-18537/2021
 

 
Applicant :- Farhan
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Navaneet Chandra Tripathi,Deena Nath,Imran Ullah,Kamla Kant Mishra
 
Counsel for Opposite Party :- G.A.,Rakesh Dubey
 

 
Hon'ble Gajendra Kumar,J.

1. Heard learned counsel for the applicant as well as learned Additional Government Advocate for the State of U.P. and perused the record.

2. This is second bail application. First bail application was rejected by a co-ordinate Bench of this Court vide order dated 16.09.2020.

3. The present bail application has been filed by the applicant seeking bail in Case Crime No.1212 of 2019, under Sections 147, 148, 149, 504, 506, 447, 386 IPC, Police Station- Dhoomanganj, District- Prayagraj.

4. As per the prosecution story, it is alleged that on 08.11.2019 at about 11:00 a.m., when informant was digging his plot for raising boundaries, then applicant along with six unknown persons came there with illegal arms and demanded illegal money of Rs.5,00,000/- (Gunda Tax) from him and also threatened him of life, hence the instant FIR was lodged on 05.12.2019.

5. It is argued by the learned counsel for the applicant that the applicant is innocent and has been falsely implicated in the present case. It is further submitted that the allegation as has been levelled in the FIR is false and fabricated. It is further submitted that there is no prospect of trial of the present case being concluded in near future due to heavy dockets. It is further submitted that despite the specific direction of the this Court, trial of the instant case is still proceeding at a very slow pace and till date only the statement of P.W.-1 has been recorded, wherein, he has not supported the prosecution story and turned hostile. It is further submitted applicant has criminal history of 29 cases, which he has satisfactorily explained in para 12 of the bail application, in which, in all the cases, the applicant either released on bail or the applicant has been acquitted. It is also submitted that there is no apprehension that after being released on bail, he may flee from the course of law or may, otherwise, misuse the liberty of bail and the applicant is in jail since 05.12.2019 and the possibility of conclusion of trial in near future is very bleak.

6. Learned AGA for the State has very vehemently opposed the prayer for bail of the applicant and submitted that applicant is a history-sheeter and has indulged in number of serious crimes earlier, as such, applicant is not entitled for bail.

7. Having heard learned counsel for the parties & perusal of record, I am of the considered opinion that when the prosecution examines a witness who does not support the case of the prosecution he cannot be "declared" to be a "hostile witness" and his evidence cannot be discarded as a whole. Although, permission may be given by the Court to such a witness to be cross-examined by the prosecution as per sub-section (2) of Section 154 of the Evidence Act, it is not necessary to declare such a witness as a "hostile witness". This is because a statement of a "hostile witness" can be examined to the extent that it supports the case of prosecutor.

8. Hon'ble Apex Court has observed and held in case of Sat Paul vs. Delhi Administration (1976) 1 SCC 727 ("Sat Paul") which is a case arising under the 1947 Act, wherein this Court speaking through Sarkaria, J. has made pertinent observations regarding the credibility of a hostile witness. It was observed in paragraph 30 of the judgment that the terms "hostile witness", "adverse witness", "unfavourable witness", "unwilling witness" are all terms of English law. At Common law, if a witness exhibited manifest antipathy, by his demeanour, answers and attitude, to the cause of the party calling him, the party was not, as a general rule, permitted to contradict him with his previous inconsistent statements, nor allowed to impeach his credit by general evidence of bad character. It was observed in paragraph 33 that the rigidity of the rule prohibiting a party to discredit or contradict its own witness was to an extent relaxed by evolving the terms "hostile witness" and "unfavourable witness" and by attempting to draw a distinction between the two categories. A "hostile witness" is described as one who is not desirous of telling the truth at the instance of the party calling him, and an "unfavourable witness" is one called by a party to prove a particular fact in issue or relevant to the issue who fails to prove such fact, or proves an opposite fact. In the context of Sections 142 and 154 of the Evidence Act, this Court observed in paragraphs 38 and 52 as under:

"38. To steer clear of the controversy over the meaning of the terms "hostile" witness, "adverse" witness, "unfavourable" witness which had given rise to considerable difficulty and conflict of opinion in England, the authors of the Indian Evidence Act, 1872 seem to have advisedly avoided the use of any of those terms so that, in India, the grant of permission to cross-examine his own witness by a party is not conditional on the witness being declared "adverse" or "hostile". Whether it be the grant of permission under Section 142 to put leading questions, or the leave under Section 154 to ask questions which might be put in cross-examination by the adverse party, the Indian Evidence Act leaves the matter entirely to the discretion of the court (see the observations of Sir Lawrence Jenkins in Baikuntha Nath vs. Prasannamoyi AIR 1922 PC 409. The discretion conferred by Section 154 on the court is unqualified and untrammelled, and is apart from any question of "hostility". It is to be liberally exercised whenever the court from the witnesses' demeanour, temper, attitude, bearing, or the tenor and tendency 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. The grant of such permission does not amount to an adjudication by the court as to the veracity of the witness. Therefore, in the order granting such permission it is preferable to avoid the use of such expressions, such as "declared hostile", "declared unfavourable", the significance of which is still not free from the historical cobwebs which, in their wake bring a misleading legacy of confusion, and conflict that had so long vexed the English courts.

52. From the above conspectus, it emerges clear that even in a criminal prosecution when a witness is cross-examined and contradicted with the leave of the court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as a matter of prudence, discard his evidence in toto."

9. Therefore, Hon'ble Apex Court cautioned with the fact that even if a witness is treated as "hostile" and is cross-examined, his evidence cannot be written off altogether but must be considered with due care and circumspection and that part of the testimony which is creditworthy must be considered and acted upon. It is for the judge as a matter of prudence to consider the extent of evidence which is creditworthy for the purpose of proof of the case. In other words, the fact that a witness has been declared "hostile" does not result in an automatic rejection of his evidence. Even, the evidence of a "hostile witness" if it finds corroboration from the facts of the case may be taken into account while judging the guilt of the accused. Thus, there is no legal bar to raise a conviction upon a "hostile witness" testimony if corroborated by other reliable evidence.

10. Considering the submissions of learned counsel for the parties, facts of the case, nature of allegation, gravity of offence as well as above-mentioned case law, without expressing any opinion on the merits of the case, the Court is of the opinion that it is not a fit case for bail. Hence, the bail application of applicant, Farhan involved in Case Crime No.1212 of 2019, under Sections 147, 148, 149, 504, 506, 447, 386 IPC, Police Station- Dhoomanganj, District- Prayagraj, is hereby rejected at this stage.

Order Date :- 13.12.2022

Ashutosh