Irfan Badshah vs State
2013 Latest Caselaw 1611 Del

6# $~
*     IN THE HIGH COURT OF DELHI AT NEW DELHI


+    W.P.(CRL) 448/2013

%                                            Decided on: 9th April, 2013

       IRFAN BADSHAH                                      ..... Petitioner
                       Through:         Mr. Abhishek Singh, Advocate.
                versus

       STATE                                               ..... Respondent

Through: Mr. Dayan Krishnan, Additional Standing Counsel for the State with SI Mahinder Singh, PS Amar Colony.

Coram:

HON'BLE MS. JUSTICE MUKTA GUPTA MUKTA GUPTA, J (ORAL)

1. At the outset learned counsel for the Petitioner prays that the present

petition be treated as a petition under Section 482 Cr.P.C. read with Article

227 of the Constitution of India. The present petition is treated as petition

under Section 482 Cr.P.C. read with Article 227 of the Constitution of India.

2. Registry to re-number the petition.

3. The grievance of the petitioner in the present petition is limited to the

disallowance of two important questions as irrelevant during the cross-

examination of PW22 ACP Mahavir Singh, Investigating Officer of case FIR

No. 161/2008 registered at PS Amar Colony under Section 302/323/34 IPC.

Learned counsel for the Petitioner contends that the Petitioner is facing trial

in a case of murder and is in judicial custody for a period of over four years.

While the Petitioner was cross-examining PW22 he asked two questions to

the Investigating officer as to whether it was correct that DD Nos. 9 and 10

were based on the documents Ex. PW12/A and Ex. PW17/A respectively.

Both these questions were disallowed by the learned Trial Court as

irrelevant. According to the learned counsel both Ex. PW12/A and PW17/A

have been adduced in the evidence by the prosecution. The reason for

asking these questions from the witness was that the version recorded in the

two DD entries was contrary to each other which could help the Petitioner in

discrediting the prosecution version qua the place of occurrence and the

sequence of events. The Court having disallowed the question, the Petitioner

has been prejudiced in his defence. Reliance is place on Jones vs. National

Coal Board, 1957 (2) All E.R. 155.

4. Learned Additional Standing Counsel for the State on the other hand

contends that the learned Trial Court has right to control the cross-

examination and disallow irrelevant questions. Section 148 Indian Evidence

Act, 1872 empowers the Trial Court to use his discretion judiciously and

disallow questions which are irrelevant to control the proceedings. Having

exercised that option being the best judge in the circumstances of the case,

this Court should not interfere in exercise of discretion under Section 482

Cr.P.C. which is required to be used sparingly. The questions sought to be

put did not elicit the truth of imputation nor discredited the witness. Hence

the learned Trial Court rightly disallowed the same as irrelevant.

5. I have heard learned counsel for the parties. There is no dispute to the

proposition that the Courts conducting trial have to use their discretion in

disallowing irrelevant questions during cross-examination. The said

jurisdiction is circumscribed in Section 148 of Evidence Act which states as

under:

"148. Court to decide when question shall be asked and when witness compelled to answer -If any such question relates to matter not relevant to the suit or proceeding, except in so far it affects the credit of the witness by injuring his character, the Court shall decide whether or not the witness shall be compelled to answer it and may, if it thinks fit, warn the witness that he is not obliged to answer it. In exercising its discretion the Court shall have regard to the following considerations;

(1) Such questions are proper if they are of such nature that the truth of the imputation conveyed by them would seriously affect the opinion of the Court as to the

credibility of the witness on the matter to which he testifies;

(2) Such questions are proper if they are of such nature that he truth of the imputation conveyed by them would seriously affect the opinion of the Court as to the credibility of the witness on the matter to which he testifies;

(3) Such questions are improper if there is a great disproportion between the importance of the imputations made against the witness's character and the importance of his evidence;

(4) The court may if it sees fit, draw from the witness's refusal to answer, the inference that the answer if given would be unfavorable."

6. A perusal of Section 148 (1) shows that if the question affects the truth

of the imputation conveyed or discredits the witness then it is proper to allow

the said question. In the present case there are different PCR calls at the

relevant time one after another within short duration which gives different

places of occurrence. The endeavour of the defence to find inconsistency in

the place of crime cannot be said to be irrelevant and disallowing such a

question as irrelevant would seriously affect the defence of the petitioner.

Further as held in the State through Special Cell, New Delhi vs. Navjot

Sandhu @ Afshan Guru and others, 2003 (60 SCC 641 the endeavour of the

Court wherever there is a serious dispute with regard to the relevancy and

admissibility of a question should be to elicit the answer of the witness after

noting the objections. The final decision to reject particular evidence as

irrelevant or inadmissible can be if required taken as the end of the trial.

This procedure benefits even the appellate court as in a case where the

question is disallowed or excluded from evidence and the appellate court

feels that the same was essential, it is at this stage not required to remand

back the matter for re-examination of the witness. Cross-examination is the

main tool of an accused to test the veracity of the evidence of the witness

and discredit his trustworthiness. Moreover, this does not mean that the trial

court will not exercise its discretion in disallowing irrelevant questions. In

State through Special Cell, New Delhi vs. Navjot Sandhu @ Afshan Guru

and others (2003) 6 SCC 641 it was held:

"4. It is the case of the prosecution that after the investigation was completed the charge-sheet was filed on 14-5-2002. It is the case of the prosecution that copy of the transcripts of the intercepted conversation were given to the accused along with the charge-sheet. On 8-7-2002 the respondents applied before the Special Judge seeking a direction that the intercepted conversation not be used as evidence in the trial for proving the charge(s) under POTA. The procedure which the Special Judge should have followed is as laid down by this Court in the case of Bipin Shantilal Panchalv. State of Gujarat [(2001) 3 SCC 1: 2001 SCC (Cri) 417]. In this case it has been held as follows: (SCC pp. 5-6, paras 12-16)

"12. As pointed out earlier, on different occasions the trial Judge has chosen to decide questions of admissibility of documents or other items of evidence, as and when objections thereto were raised and then detailed orders were passed either upholding or overruling such objections. The worse part is that after passing the orders the trial court waited for days and weeks for the parties concerned to go before the higher courts for the purpose of challenging such interlocutory orders.

13. It is an archaic practice that during the evidence- collecting stage, whenever any objection is raised regarding admissibility of any material in evidence the court does not proceed further without passing order on such objection. But the fallout of the above practice is this: Suppose the trial court, in a case, upholds a particular objection and excludes the material from being admitted in evidence and then proceeds with the trial and disposes of the case finally. If the appellate or the revisional court, when the same question is recanvassed, could take a different view on the admissibility of that material in such cases the appellate court would be deprived of the benefit of the evidence, because that was not put on record by the trial court. In such a situation the higher court may have to send the case back to the trial court for recording that evidence and then to dispose of the case afresh. Why should the trial prolong like that unnecessarily on account of practices created by ourselves. Such practices, when realised through the course of long period to be hindrances which impede steady and swift progress of trial proceedings, must be recast or remoulded to give way for better substitutes which would help acceleration of trial proceedings.

14. When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence-taking stage regarding the admissibility of any material or item of oral evidence the trial court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the court finds at the final stage

that the objection so raised is sustainable the Judge or Magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. (However, we make it clear that if the objection relates to deficiency of stamp duty of a document the court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed).

15. The above procedure, if followed, will have two advantages. First is that the time in the trial court, during evidence-taking stage, would not be wasted on account of raising such objections and the court can continue to examine the witnesses. The witnesses need not wait for long hours, if not days. Second is that the superior court, when the same objection is recanvassed and reconsidered in appeal or revision against the final judgment of the trial court, can determine the correctness of the view taken by the trial court regarding that objection, without bothering to remit the case to the trial court again for fresh disposal. We may also point out that this measure would not cause any prejudice to the parties to the litigation and would not add to their misery or expenses.

16. We, therefore, make the above as a procedure to be followed by the trial courts whenever an objection is raised regarding the admissibility of any material or any item of oral evidence."

Had the Special Judge followed the above dictum no prejudice would have been caused to the respondents inasmuch as their arguments/objections would have been decided at the stage of final hearing. If the Court was in their favour the evidence could have been eschewed and not considered. Any decision given at that stage could then have been challenged in the appeal under Section 34 POTA. Ignoring the above dictum the Special Judge chose to hear detailed arguments and by his order dated 11-7- 2002, dismissed the applications. The Special Judge held that the evidence collected by various police officials when the case was registered under different provisions of law cannot be

washed away merely because the provisions of POTA were added on 19-12-2001. The Special Judge held that the provisions of POTA had to be followed only if the investigation was done under the provisions of POTA. By dictating an order and passing the interlocutory order the Special Judge enabled the respondents to adopt the course that they have. This has resulted in a peculiar situation where two Judges of the High Court, hearing the statutory appeal under Section 34 POTA, may be precluded from deciding an important point of law by an order passed by a Single Judge of the High Court."

7. Indubitably the jurisdiction under Section 482 Cr.P.C or Article 227 of

the Constitution of India should be used sparingly and this Court will not

interfere in the judicial discretion exercised while recording evidence,

however in view of the fact that very material questions have been

disallowed as irrelevant, the Petitioner is permitted to cross-examine the

investigating officer ACP Mahavir Singh on the two questions put to him on

8th February, 2013.

8. Petition is disposed of. Order dasti.

(MUKTA GUPTA) APRIL 09, 2013 'vn'