Delhi High Court
Asif Balwa vs Cbi on 14 February, 2012
Author: M. L. Mehta
* THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(Crl) No.30/2012
Date of Decision: 14.02.2012
Asif Balwa ...... Petitioner
Through: Mr. Vijay Aggarwal, Mr. Gurpreet
Singh and Mr. Varun Sharma,
Advocates
Versus
CBI ...... Respondent
Through: Ms. Sonia Mathur, Advocate
And
+ W.P.(Crl) No.32/2012
Rajiv B. Agarwal ...... Petitioner
Through: Mr. Vijay Aggarwal, Mr. Gurpreet
Singh and Mr. Varun Sharma,
Advocates
Versus
CBI ...... Respondent
Through: Ms. Sonia Mathur, Advocate
CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA
M.L. MEHTA, J.
1. In these petitions, a short question arises for determination. The
challenge is to the proceedings and order dated 20.12.2011 passed by learned
Special Judge, conducting trial of the cases known as "2G Spectrum".
2. PW7 was under further cross examination on 20.12.2011. After he was
cross examined at length running into 12 pages and further cross examination
was deferred, the learned counsel for the petitioners objected to the presence
of the IO Mahesh Kumar and associate IO Rajesh Chahal in the court room.
The main objection that was raised was that these police officers were also
cited as witnesses by the prosecution. The learned Special Judge recorded his
observations, "Per se, I do not find anything wrong with the presence of the
IO and Associate IO in the court room".
3. The proceeding and the order passed by learned Special Judge has
been challenged by the petitioners by way of instant petitions.
4. The bone of contention of learned counsel for the petitioners was that
the presence of the IO and associate IO in the court room, when they
themselves are the witnesses and the testimony of the other witness was being
recorded, is prejudicial to a fair trial. It was submitted that witness under cross
examination may not depose truthfully and may also get afraid of by the
presence of IO. It was submitted that since the IO is generally examined at the
end, by his presence in the court he would come to know about the defence of
the accused and it would impact his effective cross examination. Learned
counsel relied upon cases of Achyutana Pitchaiah Sarna v Gorantla Chinna
Veeraya and others [AIR 1961 AP 420]; Dr. Kasi Iyer v State of Kerala
[1966 Crl.LJ 1445]; and Lalmani v Bejaj Ram [AIR 1934 840]
5. I have heard learned counsel for the petitioners and also learned
Standing Counsel for the CBI.
6. Undisputedly, it was not only the right of the accused persons, but was
also the solemn duty of the courts to ensure fair trial. As per Section 135 of
the Indian Evidence Act, the court has power to prescribe the order in which
the witnesses are to be examined. The discretion vests with the court to
regulate the appearance and examination of the witnesses. Section 327 Cr.PC
while making a provision of a criminal court to be an open court where the
public generally may have access, also empowers the court to order any
particular person at any stage of the trial not to remain present in the room
used by the court. This makes no exception in the case of police official as
well. The discretion that the court will exercise in making any person to
remain outside the court room would be exercised judiciously and depending
upon the nature of the objections, if any, that may be raised by anyone as
regards to the presence of that person. It will not be that in every case on the
raising of objection by anyone, that such a person would be ordered to remain
outside the court room. If the objection is raised at the instance of accused or
his counsel, the court will decide whether the accused's fear of prejudice to
his case is reasonable, considering the intelligence and susceptibilities of the
class to which he belongs and not merely whether the presence is convenient
to the prosecution.
7. It may be noted that the cases of Achyutana Pitchaiah Sarna v
Gorantla Chinna Veeraya and others (supra) and Lalmani v Bejaj Ram
(supra) relied upon by learned counsel for the petitioners pertain to civil suits
and they both relate to the powers of the Court to prescribe the order in which
the witnesses are to be examined and what should be the general principle of
recording of evidence. The ratio of these cases is that where a party is also a
witness, the Court can require him to give evidence before he examines the
other witnesses and if he is not willing to do so, the Court can order him to
remain outside the Court Room when his other witnesses are giving evidence.
There is no dispute with regard to these propositions of established procedure
of recording evidence. The case of Dr. Kasi Iyer (supra) also lays down
about the inherent powers of the court to direct a witness who has to give
evidence to remain outside the court when the deposition of other witness was
being recorded until he himself was examined as a witness.
8. A question that calls for determination is as to whether on the raising
of the objection by the accused or his counsel, the IO necessarily is to be
directed to remain outside the court room when the statement of some of the
prosecution witness was being recorded.
9. It may be noted that in criminal trial, particularly in a sessions case, the
presence of the Investigating Officer during trial is not only essential, but
imperative. On the mere objection of the accused or his counsel, the presence
of the Investigating Officer from the court room cannot be ousted. The
Investigating Officer is not only responsible for ensuring the presence of the
witnesses in the court during trial, but many a times his /her assistance is
sought by the prosecutor as also by the court as regards to any clarification
that may be required even during the deposition of a witness. There is no law
prescribed to outright bar the presence of the Investigating Officer in the court
room during recording of evidence of witnesses. The plea that Investigating
Officer was also one of the witnesses and would come to know of the defence
of the accused during the deposition of other witnesses and that would impact
the effectiveness of his cross examination on behalf of the accused when he
comes in the witness box, in my view, is all imaginary. The Investigating
Officer is generally examined at the end of the trial or after the examination of
material witnesses and by the time he is examined, the testimonies of all the
relevant and material witnesses are available on record and can be gone
through by him before making his deposition as a witness. It is known
practice that the witnesses are examined in the witness box one by one and
while one witness is in the witness box, at that time generally the court
ensures that no other witness remained present nearby the witness box. Mere
presence of the Investigating Officer in the court room or at some other place
away from the witness box cannot have any cause of grievance of accused or
any other witness under deposition. Similarly, the plea that the witness under
deposition was to be under fear in presence of the Investigating Officer is
again misplaced and not tenable. When the testimony, of the witnesses are
recorded by the Judge in presence of prosecutor, I fail to appreciate as to how
any witness would be in fear or under pressure by presence of Investigating
Officer in the court room. It may be rather other way round that the witnesses
may be normally under fear or pressure of the accused persons than of the
prosecutor or Investigating Officer. If any objection as regards to the presence
of the Investigating Officer is raised, the Judge may consider the objection in
its right perspective and when the same is reasonable and well-founded, he
may, in a given case, ask the Investigating Officer to remain present outside
the court room. But it is again reiterated that generally mere presence of the
Investigating Officer as such in the court room at the time of recording of
deposition of any other witness would not be a ground to say that prejudice
would be caused to the accused or the trial to be not fair.
10. In the case in hand, as noted above, the objections regarding the
presence of the Investigating Officer was raised after lengthy cross
examination of PW7 and when his further cross examination was deferred.
The learned Special Judge rightly recorded that he did not find anything
wrong with the mere presence of Investigating Officer in the court room.
11. The Apex Court in Shalendra Kumar v State of Bihar [JT 2001 (10)
SC 111, has impressed upon the requirements of the Investigating Officer to
be present before the court on each and every date of hearing, during the
recording of the statement of prosecution witnesses in order to assist the court
and expedite the conclusion of the trial and held as under:
".....The presence of Investigating Officer at the time of trial is must. It
is his duty to keep the witness present. If there is failure on part of any
witness to remain present, it is the duty of the court to take appropriate
action including issuance of bailable/ non-bailable warrants as the
case may be...."
12. Having regard to the foregoing facts and circumstances, I do not find
any illegality or impropriety in the impugned proceedings or impugned order
of learned Special Judge. Both the petitions have no merits and are hereby
dismissed without there being any orders as to costs.
13. A copy of this order be sent to all Judicial Officers of Subordinate
Judiciary for information.
M.L. MEHTA, J.
February 14, 2012
rajdass
