Jharkhand High Court
Satish Kumar vs The State Of Jharkhand And Another on 8 September, 2023
1
IN THE HIGH COURT OF JHARKHAND, RANCHI
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W.P.(Cr.) No. 590 of 2023
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Satish Kumar .... Petitioner
-- Versus --
The State of Jharkhand and Another .... Respondents
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner :- Mr. Binod Singh, Advocate
For the State :- Mrs.Priya Shrestha, Spl.P.P.
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4/08.09.2023 Heard Mr. Binod Singh, the learned counsel for the
petitioner and Mrs. Priya Shrestha, the learned counsel appearing on
behalf of the respondent State.
2. This petition has been filed for quashing of the order dated
04.07.2023 passed by the learned Special Judge, A.C.B, Ranchi arising
out of Vigilance P.S.Case No.36/15 u/s 7/13(2), r/w 13(1)(d) of P.C.Act,
1988 [Vigilance Case No.46/2015],pending in the court of learned Special
Judge, A.C.B., Ranchi.
3. Mr. Binod Singh, the learned counsel for the petitioner
submits that the petitioner has earlier moved before this Court in
W.P.(Cr.) No.160 of 2023. By order dated 03.05.2023 that writ petition
was disposed of after setting aside the impugned order with direction to
the learned court to take a fresh decision on the petition as expeditiously
as possible. By order dated 04.07.2023, the learned court has been
pleased to declare p.w.-7 namely Muku Ekka as hostile. He submits that
this has been illegally done by the learned court as he is a vital witness
so far as the correct appreciation of the allegation against the petitioner
is concerned. He submits that in the earlier occasion he has supported
the case and in the chief he has stated that he is having the visibility
problem and that is why he has refused to identify the documents. He
submits that in view of section 191 of the IPC this witness is playing with
the Court and he is required to be punished. He submits that although
the petition has been filed for filing the rejoinder however since the order
or review is not there under section 362 Cr.P.C that is why the present
writ petition is filed under Article 226 of the Constitution of India.
4. Mrs. Priya Shrestha, the leraned counsel appearing for the
respondent State submits that the petitioner is only trying to delay the
proceeding. She submits that it is well settled that even if the witness is
declared hostile that does not result in automatic rejection of his
evidence and to buttress her argument, she relied in the case of Neeraj
Dutta v. State (Government of N.C.T. of Delhi), (2023) 4 SCC
731 and refers to paragraph no.87 of the said judgment, which is quoted
below:
"87. Therefore, this Court cautioned 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 the "hostile witness"
testimony if corroborated by other evidence."
5. In view of the submission of the learned counsel appearing
on behalf of the parties, the Court finds that by order dated 04.07.2023
the said witness was declared as hostile however on the same date, a
petition was filed by the petitioner for filing rejoinder with regard to the
document not produced by the prosecution and for that the learned court
has been pleased to allow time and has fixed the next date of hearing on
03.08.2023. It appears that the grievance of the petitioner has also been
taken care of by the learned court by way of allowing time for filing the
rejoinder. It is well settled that even if the witness is declared hostile that
does not result in automatic rejection of his evidence and if there is any
corroboration from the facts of the case, the evidence can be considered.
In this regard, a reference also may be made to section 154 of the
Evidence Act:
"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 question 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"
6. Looking into the said section, it appears that it was
amended with effect from 16.04.2006 and sub-section (2) of section 154
was added from the said date, while the original section renumbered as
sub-section (1) of section 154.
7. Whether it be the grant permission under section 142 to put
leading question, or the leave under section 154 to ask question which
might be put in cross examination by the adverse party, the Evidence Act
leaves the matter entirely to the discretion of the court as has been held
in the caes of Baikuntha Nath Chattoraj v. Prasannamoyi Debya,
AIR 1992 PC 409.
8. In view of the above facts and considering the Evidence Act
as well as the judgment of the Hon'ble Supreme Court the petition filed
by the petitioner for filing the rejoinder which has been allowed by the
learned court, there is no illegality in the impugned order. Further section
155 of the Indian Evidence Act speaks of impeaching credit of the
witness and the procedure has also been prescribed therein. No case of
interference is made out.
9. W.P.(Cr.) No. 590 of 2023 is accordingly dismissed.
( Sanjay Kumar Dwivedi, J.)
SI/
