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.
[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
[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:
[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
[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
[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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