Gujarat High Court
Raghubhai Nathubhai Kumarkhaniya vs State Of Gujarat on 13 September, 2021
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
R/SCR.A/3990/2021 ORDER DATED: 13/09/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 3990 of 2021
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RAGHUBHAI NATHUBHAI KUMARKHANIYA
Versus
STATE OF GUJARAT
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Appearance:
MR ASHISH M DAGLI(2203) for the Applicant(s) No. 1,2,3,4,5,6
MS SHRUTI PATHAK, APP (2) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 13/09/2021
ORAL ORDER
1. By filing this petition under Article 226 of the Constitution of India, the petitioners-original accused call in question the legality and validity of the order dated 02.03.2020 passed by learned 13th Additional Sessions Judge, Rajkot in Sessions Case No.177 of 2013 below Exh.236 in the cross-examination of PW.25.
2. With the consent of learned advocates appearing for the respective parties, the matter has been taken up for final disposal. The petitioners are facing sessions trial for the charges under Sections 143, 147, 148, 149, 302, 452, 504, 506(2), 323 and 324 of the Indian Penal Code and Section 135 of Gujarat Police Act. During the course of recording evidence of PW.25, Exh.236, the defence had asked a question pertaining to police yadi along with the report Exh.241. The learned trial Court has refused to permit the defence counsel to ask the question to be asked to the witness. Aggrieved by the order of refusal, the present petitioners have come up before this Court to quash the impugned order.
3. Relying on the decision of Co-ordinate Bench of this Page 1 of 10 Downloaded on : Sun Jan 16 14:14:53 IST 2022 R/SCR.A/3990/2021 ORDER DATED: 13/09/2021 Court in case of Prashant Maheshbhai Pandya & Ors. vs. State of Gujarat reported in 2016 (3) Crimes. 90, Mr. Ashish Dagli, learned advocate for the petitioners would submit that the learned trial Court has not properly followed the law laid down by this Court in the case of Prashant Maheshbhai Pandya (supra) and straightaway rejected the application and therefore, the learned trial Court has committed an error in disallowing the question referred to above.
4. On the other hand, learned APP Ms. Shruti Pathak appearing for the respondent-State opposing the present application would submit that the impugned order being an interlocutory order, this Court may not exercise its jurisdiction under Article 226 of the Constitution of India.
5. Having heard learned advocates appearing for the respective parties and on perusal of record of the case as well as the impugned order, it appears that the learned trial Court has taken a note of the law laid down by this Court in the case of Prashant Maheshbhai Pandya (supra), but, in the facts of present case, how it is not applicable, that has not been discussed by the learned trial Court. It is relevant to refer the observations made in the cited judgment. The extracts of paragraph nos.8 to 23 of the aforesaid judgment reads as under:
"8 Having heard the learned counsel appearing for the parties and having gone through the materials on record, the question that falls for my consideration is whether the trial Judge committed any error in disallowing the question put to the original complainant in his cross-examination by the defence counsel.
9 In my view, this litigation could have been easily avoided by the Court below, had the Court been aware of the decision of the Page 2 of 10 Downloaded on : Sun Jan 16 14:14:53 IST 2022 R/SCR.A/3990/2021 ORDER DATED: 13/09/2021 Supreme Court in the case of State through Special Cell, New Delhi vs. Navjot Sandhu @ Afshan Guru and others, [2003(6) SCC 641].
10 The endevour of the Court wherever there is a serious dispute with regard to the relevancy and admissibility of the question should be to elicit the answer of the witness after noting objections. The final decision to reject a particular piece of evidence as irrelevant or inadmissible can be if necessary taken at the end of the trial. Such procedure would benefit even the Appellate Court in a case where the question is disallowed or excluded from the evidence and the Appellate Court feels that the same was essential, it is at that stage not required to remit the matter for reexamination of the witness. The cross-examination is a very important tool of an accused to test the veracity of the evidence of the witness and discredit his trustworthiness. However, this does not mean that the trial Court will not exercise its discretion in disallowing the irrelevant questions. In State through Special Cell (supra), it was held as under:
"4. It is the case of the prosecution that after the investigation was completed the chargesheet 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 Page 3 of 10 Downloaded on : Sun Jan 16 14:14:53 IST 2022 R/SCR.A/3990/2021 ORDER DATED: 13/09/2021 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 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 evidencetaking 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."
11 Had the learned Judge followed the above dictum, no Page 4 of 10 Downloaded on : Sun Jan 16 14:14:53 IST 2022 R/SCR.A/3990/2021 ORDER DATED: 13/09/2021 prejudice would have been caused to the prosecution inasmuch as their arguments/ objections would have been testified at the stage of final hearing.
12 I could have stopped here with a direction to the learned trial Judge to allow the question to be put to the concerned witness and the relevancy of the answer could have been tested by the learned trial Judge while appreciating the overall evidence at the final stage. It may not be out of place to state at this stage that the objection was not raised by the Public Prosecutor as regards the relevancy or irrelevancy of the question, but it is the Court who found the question to be irrelevant.
13 However, taking into consideration the importance of the issue as the same quiet often crops up in the daytoday functioning of the Courts, I deem it necessary to delve into deep so that the procedural aspects could well be made clear.
14 The principles of examination of witnesses are delineated under Chapter 10 of the Evidence Act, almost, with mathematical precision. A witness can be examined to establish a fact in issue or a relevant fact. These expression, in turn are defined under Section 3 of the Act. Under Section 136 of the Act, the trial Court is entitled to ascertain the purpose for which a particular witness is examined. It is only on being satisfied that the evidence of such witness would throw light on the facts in issue or the relevant fact, that he may be permitted to be examined. Section 138 of the Act incorporates certain important principles in the mater of examination of the witness in chief. It insist that the examination in chief and cross must relate to the relevant facts. The cross examination, however, is not restricted to the facts, which are testified in the chief examination. As long as it relates to the relevant facts, the cross-examination cannot be confined to any limits.
15 However, the essence of cross examination is that it is interrogation by the advocate of one party of the other party or his or her witness called by his adversary with the object either to obtain from such party/witness admissions favourably to his cause or to discredit him. Nobody likes to be cross examined and I suppose it is human tendency and yet cross examination is considered to be the most effective of all means of extracting the truth and exposing falsehood. It is stated in para 801 of the Halsbury's Laws of England, Third Edition, Volume 15 that the purpose of cross examination is that it is directed to (1) credibility of the witness; (2) the facts to which he has deposed in chief, including cross examiner's version thereof; and (3) the facts to which the witness has not deposed but to which the cross examiner thinks he is able to depose. It is also stated therein that the failure to cross examine a witness on some material part of his evidence, or at all, may be treated as acceptance of the truth of Page 5 of 10 Downloaded on : Sun Jan 16 14:14:53 IST 2022 R/SCR.A/3990/2021 ORDER DATED: 13/09/2021 that part or the whole of his evidence. The object of cross examination is two fold and that is to weaken, qualify or destroy the case of the opponent; and to establish the party's own case by means of his opponent's witnesses (Phipson, 11th Ed p. 648). As per Powell, (9th Ed, p 532), the objects are to impeach the accuracy, credibility and general value of the evidence given in chief, to sift the facts already stated by the witness, to detect and expose discrepancies, or to elicit suppressed facts which will support the case of the cross-examining party. The exercise of this right is justly regarded as one of the most efficacious tests, which the law has devised for the discovery of truth. By means of it, the situation of the witness with respect to the parties and to the subject of litigation, his interest, his motives, his inclination and prejudices, his character, his means of obtaining a correct and certain knowledge of the facts to which he bears testimony, the manner in which he had used those means, his powers of discernment, memory and description are all fully investigated and ascertained and submitted to the consideration of the jury, (or the Court) who have an opportunity of observing his demeanor, and of determining the just value of his testimony. Considerable latitude is allowed in cross examination. It need not be confined to the facts elicited in examination in chief or to strictly relevant facts. The accused is entitled to cross examination to elicit facts in support of his defence from the prosecution witnesses wholly unconnected with the examination in chief. The cross examining advocate can even undertake to show at some subsequent stage that questions apparently irrelevant are really relevant. "Relevant facts" in cross examination must necessarily have a wider meaning then the term when applied to examination in chief. For instance the facts though otherwise irrelevant may involve questions affecting the credit of the witness and such questions are permissible in cross examination. Cross-examination is not limited to the matters upon which the witness has already been examined in chief but extends to the whole case (See Sarkar on Evidence, 15th Edition page 2172). It must also not be forgotten that many a times the privilege of cross examination to credit is abused and this happens when the cross examiner allows himself to be a tool in the hands of unscrupulous litigant disrespecting his profession.
16 Under the scheme of the Indian Evidence Act, Chapter X deals with examination of witnesses and Section 137 gives a statutory right to the adverse party to cross-examine a witness examined-in-chief. Section 138 gives the order of examination of witnesses. After defining what is a leading question in Section 141, law permits such questions to be put while the witness is under the cross-examination. Section 146 indicates the lawful ambit and scope of such cross-examination inter alia, by pointing out that questions which test the veracity of a witness or which tend to discover who he is and what is his position in life, or which go to shake his credit by injuring his character, although the Page 6 of 10 Downloaded on : Sun Jan 16 14:14:53 IST 2022 R/SCR.A/3990/2021 ORDER DATED: 13/09/2021 answer to such question might tend directly or indirectly to criminate him or might expose or tend directly or indirectly to expose him to a penalty or forfeiture, are within permissible precincts of that provision. Section 148 gives discretion to a Court to decide certain matters, as to whether or not a witness should be subjected compulsorily to answer, or whether, in its discretion, may proceed to warn the witness that he is not obliged to answer the question. The provisions of Section 148 open up by a qualifying clause that when such a question relates to a matter not relevant to a suit or proceeding, then the Court has discretion to decide as is indicated by the Section itself. It follows, therefore, that once a question, which is not relevant is put, the matter is within the discretion of the Court and it has to decide whether the witness has to be compelled to answer such a question or whether a warning should ensue that the witness is not obliged to answer the same. The decision of the Court must reach either of these two results. While exercising the discretion in this regard what matters should be taken into account are enumerated in clauses (1) to (4) of Section 148 and one of those is that such questions are proper if the same are of such a 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.
17 Section 149 is a warning signal to the person putting the question and indicates ensuing liability. It also further points out how to work out the right of a cross-examination in such matters. It expressly states that, unless there are reasonable grounds for thinking that the imputation which is conveyed by these questions is well founded, questions should not be asked. Illustrations appended to the section lucidly illustrate the purpose of the provisions of Section 149. Section 150 is the penalty that may ensue against a reckless cross-examination if the Court was of the opinion that the questions were asked without reasonable grounds.
18 Section 151 gives power to the court to forbid questions on the ground that those are indecent or scandalous, subject, however to the exception that they relate to the facts in issue, or to matters necessary to be known in order to determine whether or not the facts in issue existed. In other words, indecent and scandalous questions can be put if they directly relate to the facts in issue and also if it is necessary to be known in order to determine whether or not the facts in issue existed. It has to be pointed out, therefore, that these exceptions are vital, and if in any given case the Court is satisfied that even an indecent or scandalous question may have a bearing upon a fact in issue, the same cannot be forbidden. If a question is merely intended to insult or annoy and is offensive in form, the court has power to forbid the same as is clear from Section 152.
Page 7 of 10 Downloaded on : Sun Jan 16 14:14:53 IST 2022R/SCR.A/3990/2021 ORDER DATED: 13/09/2021 19 Thus the whole scheme has to be worked out within the limits of the cross-examination primarily indicated by Sec. 146 of the Act. In certain matters the Court has to decide whether the witness should be compelled to answer or whether he should be warned that he is not obliged to answer. The liability of the person asking the question is indicated by Sections 149 and 150. The power to forbid asking of such questions is referable to Sections 151 and 152. After mapping out this scheme, the legislature has enacted Section 155 which deals with impeaching credit of witnesses and also speaks of modes how the same has to be done. Such credit can be impeached by the adverse party so also by the party who calls the witness with the leave of the court and amongst others, if permitted, by tendering evidence of persons to testify that the witness was believed by them to be unworthy of credit, or by tendering proof that the witness was bribed or had the offer of bribe or had received any other inducement to give evidence, or by proof of former statements inconsistent with any part of the evidence given by him and in case of a prosecutrix, by leading evidence of her immoral character. These provisions do in fact illustrate that the law permits, as a reasonable mode of defence, to put before the Court even further evidence so as to discredit a particular witness. Along with this the provisions of Section 146 permit questions which tend to shake the credit of a witness by injuring his character. Both these provisions will have to be considered together while deciding such matters.
20 The legislative intent has to be primarily found from the language employed in the enacting statute. The word 'credit' used in Sec. 146 is of a wide and varied connotation and has to be distinguished from the word 'character', though the latter may include the former. 'Credit' would take in belief, estimate of reputation, however, good character, and 'creditable' so construed would mean, honourable or trustworthy. The 'character' envisages a moral or ethical qualities of a person as a social being. Thus it is plain that the provisions of Section 146(3) permit a cross-examiner to put questions which will not only shake the credit of a witness, but which will also expose his ethical and moral behaviour which may ultimately weigh with the Court while evaluating or appreciating testimonial evidence. By its very nature questions on mala fides as opposed to bona fides, immorality as opposed to good morality, dishonesty as against honesty, falsehoods as against truthfulness, can all conceivably be put, provided there is necessity and foundation for the same. For further (sic) Section 155 expressly permits by indicating a mode and manner to bring in evidence upon the credit of a witness so as to impeach such testimony. Mere exercise by the media indicated by Section 155, without asking questions permissible under Section 146, may in a given case loose all its effectiveness and would be futile. What could therefore be brought before the Court under Section 155 can surely be put to the witness nay, Page 8 of 10 Downloaded on : Sun Jan 16 14:14:53 IST 2022 R/SCR.A/3990/2021 ORDER DATED: 13/09/2021 must be put while he is giving evidence in a cause. Looking to this interwoven scheme of statutory provisions, it is plain that under the Indian law, "credit" including "the character" of a witness, is a relevant factor to be taken into account by every Court administering justice. However such being the amplitude, of necessity, limitations may arise because of the issues that may be involved in a particular given controversy and further the questions being merely asked to insult or annoy a witness or the question is by itself indecent or scandalous. In such offensive only the Court is empowered to protect the witness by the manner indicated by Section 148, Section 150 or even putting an embargo under Section 151 or 152 of the Act. Till conditions of these provisions are not satisfied the matter is at large and witness must stand all the test before his word can be raised to pedestal of the proof.
21 In the matter of Vakil (1925) ILR 47 All 729 : ((1925) 26 Cri LJ 1091) the Full Bench of Allahabad High Court has indicated what is an abuse of the right of crossexamination and also indicated the duty of the counsel in that regard. In Subola Pari v. Indra Kumar Hazara, (AIR 1923 Cal 315 (2)) a question affecting the moral character having imputation of unchastity was held to be relevant because of the controversy between the parties relating to inheritance of the property. It was further observed that if such a question is asked for impeaching the credit of the witness, the Court will have to consider the provisions of Sections 146 and 148 to 152 of the Evidence Act. The learned Single Judge of the Mysore High Court in Deepchand v. Sampathraj, AIR 1970 Mys 34 : (1970 Cri LJ 260) has observed that provisions of Section 146(3) of the Evidence Act permitted a question which will injure the character of a witness and has further considered on its basis the liability of the cross-examining counsel in such matters. The learned Judge observed with reference to Section 146 as follows :
" ??? Thus, it would be seen that it is perfectly open to a lawyer to put questions to a witness in cross-examination in order ??? to shake his credit by injuring his character and the mere fact that the answer to such question may directly or indirectly tend to criminate the witness is no justification to refuse to answer such questions."
A Division Bench of the Madras High Court in In re G. Vasantha Pai, (AIR 1960 Mad 73) has pointed out that an advocate in the discharge of his duties to his client must not be hampered by any fear of offending the opposite party or any witness, and in the wake of such a duty it is further pointed out that questions will have to be asked which may not be fit for the drawingroom or which may appear to be scandalous but "what is relevant cannot be scandalous". These are enough illustrations to indicate that every matter has to be viewed from a larger and all- round perspective. By merely putting out the question on the Page 9 of 10 Downloaded on : Sun Jan 16 14:14:53 IST 2022 R/SCR.A/3990/2021 ORDER DATED: 13/09/2021 ground of relevancy in a given case, may disserve the cause of justice. [See- Prakash Rajaram and others vs. State of Maharastra, (1975 Criminal Law Journal 1297)].
22 I may clarify while explaining the proposition of law as above that in the present case, questioning the character of the witness is not the issue. However, I have thought fit to touch this issue having regard to the importance of the same. The issue in the present case is very simple whether the question which the defence counsel proposes to put to the complainant has any relevancy with the charge framed against the accused persons. The defence counsel may be having something in his mind and was reluctant to disclose the same in the fear that his defence would be disclosed which would cause prejudice to his client. However, as observed in para 15 that the defence counsel can even undertake to show at a subsequent stage that the question was really relevant.
23 However, without going further into this controversy, I direct the learned 6th Additional Sessions Judge, Khambhaliya to permit the defence counsel to put the question which is in debate and the relevancy of the same may be testified at the time when the Court appreciating the entire evidence on record while determining the guilt or the innocence of the accused persons."
6. In view of law laid down by this Court, without entering into the merits of the case, the impugned order dated 02.03.2020 passed by learned 13th Additional Sessions Judge, Rajkot in Sessions Case No.177 of 2013 during recording of evidence of PW.25, Exh.236 is hereby quashed and set aside and the matter is remitted back to the learned trial Court for a fresh decision on the issue of question framed by the Court. Considering the facts of the present case, the learned trial Court shall decide the issue bearing in mind the dictum of law laid down by this Court in the case of Prashant Maheshbhai Pandya (supra).
It is made clear that this Court has not examined the merits of the case.
(ILESH J. VORA,J) TAUSIF SAIYED Page 10 of 10 Downloaded on : Sun Jan 16 14:14:53 IST 2022