Bombay High Court
Ramdas Srinivas Nayak vs Abdul Rehman Antulay And Anr. on 6 October, 1992
Equivalent citations: 1993(1)BOMCR185, (1993)95BOMLR75
JUDGMENT V.P. Tipnis, J.
1. What is the effect of the order of the Apex Court delivered by its judgment , A.R. Antulay v. R.S. Nayak & another, on the statements recorded by this Court in pursuance to the directions of the Apex Court passed on 16th February 1984 is the main question in this petition.
2. We find it unnecessary to give details of the entire history of the prosecution which has given rise to the present petition. The present petitioner Shri Nayak prosecuted Shri A.R. Antulay as early as in the year 1981. There have been innumerable proceedings before different courts including the Apex Court. One of the proceedings relevant to the issue is the proceeding before the Apex Court which culminated in the decision R.S. Nayak v. A.R. Antulay. The aforesaid matter before the Supreme Court arose out of the order and decision of the learned Special Judge Shri R.B. Sule discharging the accused in the Special Case No. 24 of 1982 and Special Case No. 3 of 1983. The aforesaid order of discharge was set aside by the Apex Court and the Apex Court directed that the trial shall proceed further from the stage where the accused was discharged.
3. In paragraph 73 of the aforesaid judgment the Apex Court directed that the Special Case No. 24 of 1982 and the Special Case No. 3 of 1983 pending in the Court of the Special Judge, Shri R.B. Sule are withdrawn and transferred to the High Court of Bombay with a request to the learned Chief Justice to assign these two cases to a sitting Judge of the High Court. It was further directed that on being so assigned the learned Judge may proceed to expeditiously dispose of the case preferably by holding the trial from day to day basis.
4. Thereafter, the trial in fact proceeded before the High Court and 3 successive Judges of this Court had occasion to deal with the proceedings. Several witnesses were examined by this Court in pursuance to the directions referred to above by the Apex Court. When by an order dated 24th July 1986, the learned High Court Judge framed as many as 79 charges the accused preferred Special Leave Petition No. 2519 of 1986 before the Supreme Court and raised the question of High Court's jurisdiction to try the cases in violation of Articles 14 and 21 of the Constitution as also the provisions of the Act 46 of 1952. The Special Leave was granted by the Apex Court and the appeal being Criminal Appeal No. 468 of 1986 was decided by the Apex Court, the decision being . Though we will have occasion to refer to this case in greater details what is relevant for the time being is the ultimate order passed by the Apex Court. The said order is contained in paragraph 242 of the aforesaid judgment which is as under:
"In view of the majority judgments the appeal is allowed; all proceedings in this matter subsequent to the directions of this Court on February 16, 1984 as indicated in the judgment are set aside and quashed. The trial shall proceed in accordance with law, that is to say, under the Act of 1952".
5. Thereafter, the trial commenced before the Special Judge Shri Kulkarni. Several witnesses were examined and when P.W. 7 one Shri Ramesh Merchant was being examined, the advocate for the complainant by his application dated 12-3-1992 made a request to the learned Special Judge under section 154 of the Indian Evidence Act, which was specifically for permission of the Court to permit the complainant to put questions to the said witness Ramesh Merchant which might be put in the cross-examination. The application mentioned that the aforesaid witness was examined before the High Court as P.W. 33 when the case was tried by the sitting Judge of the Bombay High Court in pursuance of the directions of the Apex Court. A specific reference to paragraph 10 of the said deposition before the High Court was made in the said application. The application mentioned that the evidence of this witness given before the learned Special Judge on 11-3-1992 is directly contradictory to his previous evidence before the High Court. It was further submitted that on plain reading of the two versions it is clear that one of the two versions cannot be true. It was further submitted that therefore in order to ascertain which one of the two versions is true or to find out as to whether or not there is any indication of the witness giving evidence which is inconsistent on a most material point with the one which he gave before the previous authorities, it is necessary to put questions to him which might be put in cross-examination and also confront him with his previous statements. The application further averred that it is also necessary to afford an opportunity to the said witness to explain the patent inconsistency between his said two versions.
6. Objection was taken for grant of any such permission by the accused. The main contention being that the effect of the order of the Apex Court quashing the proceedings before the High Court would be that the evidence of witnesses examined before the High Court has become null and void or nonest and has to be treated as nonexistent like the evidence which has been expunged by the Court.
7. The learned Special Judge by his judgment and order dated 13-3-1992 was pleased to reject the application filed by the complainant for permission to cross-examine his own witnesses with reference to the previous statements made by the said witnesses i.e. his deposition before the High Court at the earlier stage of the proceedings. After referring to the detailed submissions made by the learned Counsel on both sides, the learned Special Judge firstly held that there is no other animosity or any other grounds shown for putting questions to the said witness in the nature of cross-examination. The learned Judge further came to the specific conclusion that the effect of the quashing of the proceedings before the High Court is that the said proceedings including oral evidence are quashed for all purposes. The learned Judge further held that it is not correct, legal and logical that it would be not useful as a substantive evidence and that it would be useful for a limited purpose for contradiction under section 145 of the Evidence Act. In the opinion of the learned Judge the effect of the words `and quashed' used in 1988 judgment of the Supreme Court is that all the said proceedings including all the oral evidence has become nonest and nonexistent. The learned Judge therefore, held that there is no previous statements existing in law, with which the witness can be confronted and contradicted. It is on these reasonings that the learned Judge rejected the application filed by the complainant.
8. This order dated 13-3-1992 is impugned in the present petition. Shri Apte, learned Counsel appearing on behalf of the complainant submitted that the learned Judge's reasonings are absolutely incorrect. In the facts and circumstances of the case the question is whether the learned Judge of the trial Court has refused to exercise jurisdiction vested in him by law. Shri Apte submitted that by no stretch of imagination the statements recorded by the High Court of various witnesses become nonexistent by virtue of the order of the Apex Court issued in 1988. May be, Shri Apte submitted that those statements or evidence is deprived of all its efficacy as evidence or as basis for any proceedings against the accused. Therefore, the proceedings were terminated and all that happened during the proceedings has become legally ineffective but that does not mean that it ceases to exist even as previous statements. Shri Apte therefore, challenged the correctness and legality of the order of the learned Judge of the trial Court.
9. Shri Ovalekar, learned Counsel appearing for the respondent-accused on the other hand contended that on proper reading of the judgment of the Apex Court delivered in 1988 there is no manner of doubt that the effect thereof must be of making all proceedings before the Hon'ble High Court nonest or nonexistent. Shri Ovalekar submitted that, that being a case, the learned Judge of the trial Court was absolutely right when he declines to grant permission to the complainant for contradicting the witnesses with the previous statements which never existed. Shri Ovalekar further submitted that apart from this aspect the learned Judge is also right in declining to grant permission to the complainant under the provisions of section 154 inasmuch as no material was shown or no indication was given by the complainant which would enable the learned Judge to exercise his discretion of granting or not granting permission. Shri Ovalekar also submitted that as observed by the learned Judge in paragraph 19 of his order the complainant has not made out any case for granting such permission. Shri Ovalekar in that behalf brought to our notice the subsequent order passed by the Special Judge on 18-3-1992 wherein the learned Judge observed that the evidence does not show that the witness is adverse to the prosecution or that he has been changing his version and not telling the whole truth and therefore he rejected the oral application for cross-examination of relevant witness at that time. Shri Ovalekar therefore, submitted that the permission to be granted under section 154 of the Indian Evidence Act is within the absolute judicial discretion of the trial Court and that discretion should not be interfered with. Shri Ovalekar also submitted that the order passed by the trial Court is purely interlocutory order within the meaning of section 397 of the Code of Criminal Procedure. As such no revision is maintainable challenging the said interlocutory order and if revision is not maintainable, petition for exercise of inherent powers of this Court under section 482 of Code of Criminal Procedure is also not maintainable. Shri Ovalekar submitted that no writ can be issued against the subordinate Court and therefore, the petition under Article 226 of the Constitution also is incompetent. Shri Ovalekar also submitted that if he is right in his submissions that the effect of the directions of the Apex Court issued in 1988 is to render all the proceedings including the evidence before the High Court nonest and nonexistent, then on the principle that what cannot be done directly cannot be allowed to be done indirectly. The evidence recorded before the High Court cannot be treated as a previous statement for the purpose of section 145. Shri Ovalekar further submitted that in the event of a particular witness accepting the fact of such previous statement and the correctness thereof, such statement could be used as substantive evidence in the present trial and that cannot be allowed to be done. For all these reasons Shri Ovalekar submitted that this Court should not interfere with the impugned order.
10. Shri Mirajkar, learned Additional Public Prosecutor for the State also made his submission. Shri Mirajkar submitted that the only effect of the directions of the Apex Court issued in 1988 would be to deprive the proceedings before the High Court and the evidence which was recorded by the High Court of the legal efficacy and nothing more. Shri Mirajkar submitted that the evidence recorded by the High Court could be used as previous statement for the purpose of section 145 of the Indian Evidence Act.
11. The Counsel on both sides have cited several authorities in support of their rival submissions. We have heard the learned Counsel at length. We have also gone through the impugned judgment and order as also various judgments cited before us and mainly the judgment of the Apex Court . Now coming to the rival contentions we will first deal with the contention of Shri Ovalekar that the present petition is not maintainable, either in revisional jurisdiction of this Court or under section 482 of the Code of Criminal Procedure or under Article 226 of the Constitution of India. We may refer to several cases cited by Shri Ovalekar in this behalf.
12. In , Titaghur Paper Mills Co. Ltd. and another v. State of Orissa and others. The Apex Court held as under:
"Where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute alone must be availed of. Under the scheme of the Orissa Sales Tax Act, there is a hierarchy of authorities for granting redress. The petitioners had as equally efficacious alternative remedy by way of an appeal to the Prescribed Authority under sub-section (1) of section 23, then a second appeal to the Tribunal under sub-section (3)(a) thereof, and thereafter, in the event the petitioners get no relief, to have the case stated to the High Court under section 24 of the Act. The Act provides for an adequate safeguard against an arbitrary or unjust assessment, such as right to prefer appeal under section 23(1) and to apply for stay of recovery under Clause (a) of the second proviso to section 13(5). Thus the Act provides for a complete machinery to challenge an order of assessment and the impugned orders of assessment can only be challenged by the mode prescribed by the Act and not by a petition under Article 226".
In , Assistant Collector of Central Excise, Chandan Nagar, West Bengal v. Dunlop India Ltd and others, the Apex Court observed as under:
"Article 226 is not meant to short-circuit or circumvent statutory procedures. It is only where statutory remedies are entirely ill-suited to meet the demands of extraordinary situations, as for instance where the very vires of the statute is in question or where private or public wrongs are so inextricably mixed up and the prevention of public injury and the vindication of public justice require it that recourse may be had to Article 226 of the Constitution. But then Court must have good and sufficient reason to bypass the alternative remedy provided by statute. Surely the matters involving the revenue where statutory remedies are available are not such matters. The Court can take judicial notice of the fact that the vast majority of the petitions under Article 226 are filed solely for the purpose of obtaining interim orders and thereafter prolong the proceedings by one device or the other. The practice certainly needs to be strongly discouraged".
Shri Ovalekar also relied upon in this behalf a judgment of the Apex Court , Prem Chand Garg and another v. Excise Commissioner, U.P. and others. He particularly emphasised the observations in paragraph 12 of the judgment which were with reference to the powers of the Apex Court under Article 142 of the Constitution. The Apex Court observed as under:
"The powers of this Court are no doubt very wide and they are intended to be and will always be exercised in the interest of justice. But that it not to say that an order can be made by this Court which is inconsistent with the fundamental rights guaranteed by Part III of the Constitution. An order which this Court can make in order to do complete justice between the parties, must not only be consistent with the fundamental rights guaranteed by the Constitution, but it cannot even be inconsistent with the substantive provisions of the relevant statutory laws."
Shri Ovalekar in this behalf also relied upon the decision of the Apex Court , Amar Nath and others v. State of Haryana and another, wherein the Supreme Court observed as under:
"A harmonious construction of section 397 and 482, Criminal Procedure Code, 1973, would lead to the irresistible conclusion that where a particular order is expressly barred under section 397(2) and cannot be subject to revision by the High Court then, to such a case, the provisions of section 482 dealing with the inherent powers of the High Court would not apply.
The inherent powers of the Court can ordinarily be exercised when there is no express provision on the subject matter. Where, however, there is an express provision barring a particular remedy the Court cannot resort to the exercise of inherent powers".
It requires to be noticed in this behalf that the present petition is purportedly filed under section 482 of the Code of Criminal Procedure as also under section 401 of the Code of Criminal Procedure as also under Article 226 of the Constitution of India. Of course it is settled law that the question will not be whether the petition is expressly filed under a particular provision of law but the question which the Court must decide is whether in the facts and circumstances of the case, the petition or application will be maintainable under any of the provisions of law irrespective of the fact whether the said provision is expressly referred to or mentioned in the petition or not.
13. Therefore, the real issue before this Court would be whether the impugned order is revisable at all, under the provisions of section 397 of the Code of Criminal Procedure, and in view of the provisions of sub-section (2) thereof. In other words question will be whether the impugned order is an interlocutory order within the meaning of section 397 sub-clause (2) of the Code of Criminal Procedure. In this behalf two judgments of the Apex Court are absolutely relevant. First is in the case of Amar Nath and others v. State of Haryana and another, . The Apex Court in the aforesaid case observed as under:
"The main question which falls for determination in this appeal is as to what is the connotation of the term `interlocutory order' as appearing in sub-section (2) of section 397 which bars any revision of such an order by the High Court. The term `interlocutory order' is a term of well-known legal significance and does not present any serious difficulty. It has been used in various statutes including the Code of Civil Procedure, Letters Patent of the High Courts and other like statutes. In Webster's New World Dictionary `interlocutory' has been defined as an order other than final decision. Decided cases have laid down that interlocutory orders to be appealable must be those which decide the rights and liabilities of the parties concerning a particular aspect. It seems to us that the term `interlocutory order' in section 397(2) of the 1973 Code has been used in a restricted sense and not in any broad or artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights of the liabilities of the parties. Any order which substantially affects the right of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order, because that would be against the very object which formed the basis for insertion of this particular provision in section 397 of the 1973 Code. Thus, for instance, orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceedings, may no doubt amount to interlocutory orders against which no revision would lie under section 397(2) of the 1973 Code. But orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory order so as to be outside the purview of the revisional jurisdiction of the High Court".
In V.C. Shukla v. State through C.B.I., the Apex Court was considering the true meaning of expression `interlocutory order' as used in section 11(1) of the Special Courts Act, 1979. In paragraph 6 of the judgment delivered by Justice Fazal Ali for himself and on behalf of Justice A.P. Sen, a specific reference was made to Amar Nath's case. In paragraph 7 of the said judgment the Apex Court observed that the `interlocutory order' used in the Code of Criminal Procedure has to be given a very liberal construction in favour of the accused in order to ensure complete fairness of the trial because the bar contained in section 397(3) of the Code would apply to a variety of cases coming up before the courts not only being offences under the Penal Code but under numerous Acts. The revisional power of the High Court or the Sessions Judge could be attracted if the order was not purely interlocutory but intermediate or quasi final. The same, however, could not be said on the Special Courts Act which was meant to cover only specified number of crimes and criminals and the objective attained was quickest despatch and speediest disposal". Ultimately in paragraph 44 of the said judgment, the Apex Court held as under:
"On a true construction of section 11(1) of the Act and taking into consideration the natural meaning of the expression `interlocutory order', there can be no doubt that the order framing charges against the appellant under the Act was merely an interlocutory order which neither terminated the proceedings nor finally decided the rights of the parties. According to the test laid down in Kuppuswami's case (supra) the order impugned was undoubtedly an interlocutory order. Taking into consideration, therefore, the natural meaning of interlocutory older and applying the non obstante clause, the position is that the provisions of the Code of Criminal Procedure are expressly excluded by the non obstante clause and therefore, section 397(2) of the Code cannot be called into aid in order to hold that the order impugned is not an interlocutory order. As the decisions of this Court in the cases of Madhu Limaye and Amarnath v. State of Haryana, were given with respect to the provisions of the Code, particularly section 397(2), they were correctly decided and would have no application to the interpretation of section 11(1) of the Act, which expressly excludes the provisions of the Code of Criminal Procedure by virtue of the non-obstante clause".
14. Shri Ovalekar, learned Counsel appearing for the accused brought to our notice paragraphs 95 and 99 as also paragraph 105 of the very judgment delivered by Justice D.A. Desai. No doubt in paragraph 95 there is observation to the effect that:
"In a criminal proceeding when either the accused is acquitted or convicted and sentence is pronounced upon, the order would be a judgment disposing of case before the Court trying the accused. Till this situation is reached, a number of orders may have to be made, during the progress of adjudication of main dispute, such orders can appropriately and legally be styled as `interlocutory orders'"
It requires to be emphasised that these observations in paragraph 95 have to be read in the context of paragraph 94 wherein the learned Judge has observed that "It is, therefore, necessary to ascertain the true import of what can be styled as an interlocutory order which would not be appealable under section 11 of the Act." In paragraph 99 the learned Judge has referred to Amarnath's case. In paragraph 100 the learned Judge has observed as under:
"The test formulated by the Court was that any order which substantially affects the rights of the accused or decides certain rights of the parties cannot be said to be an interlocutory order. The fact that the controversy still remains alive was considered irrelevant".
In paragraph 105, the learned Judge has observed that the statement of law in terms approves and affirms the ratio of Kuppuswami's case and Mohammad Amin Brothers case. The learned Judge further observed "But undoubtedly in the context of section 397(2) read with section 482 of the Code, Apex Court with a view to providing a judicial umbrella of active supervision for reaching possible correctible injustice by activist attitude and pragmatic interpretation found a third class of orders neither interlocutory nor final but intermediate and therefore, outside the bar of section 397(2) of the Code of Criminal Procedure.
15. In the matter of Madhu Limaye v. The State of Maharashtra, -the Apex Court has observed as under:
"The 1973 Code put a bar on the power of revision in order to facilitate expeditious disposal of cases. But in section 482 it was provided that nothing in the Code, which would include section 397(2) also, shall be deemed to limit or affect the inherent powers of the High Court. On a harmonious construction it should be held that the bar provided in section 397(2) operates only in exercise of the revisional power of the High Court, meaning thereby, that the High Court will have no power of revision in relation to any interlocutory order. But in such a case, the inherent power will come into play there being no other provision in the Code for the redress of the grievance of the aggrieved party. In case the impugned order clearly brings out a situation which is an abuse of the process of the Court, or for the purpose of securing the ends of justice interference of the High Court is absolutely necessary, then nothing contained in section 397(2) can limit or affect the exercise of the inherent power of the High Court".
16. So far as the decision , V.C. Shukla v. State through C.B.I., is concerned, there can be no manner of doubt that it has specifically dealt with the provisions of section 11 of the Special Courts Act and the interpretation of "interlocutory order" therein is with specific reference to section 11 of the Special Courts Act. In the aforesaid decision in fact, the decision of the Apex Court in Amarnath's case and Madhu Limaye's case is expressly declared to be correct, relating to the interpretation of the word `interlocutory order' within the meaning of section 397 of the Code of Criminal Procedure.
17. Now coming to the case before us, the order impugned rejecting the application of the complainant, for permission to cross-examine prosecution witnesses with reference to the earlier or previous statement, it must be remembered that in a criminal trial the entire result depends on the oral testimony of the witnesses and the reliability and veracity of the witnesses is the foundation of reaching any conclusion. In such a trial can it be said that the impeaching veracity of the witnesses by permissible mode of contradicting him with his previous statement, is not a matter of moment or matter of substantial right for one of the parties i.e. the complainant. In Amarnath's case the Apex Court has ruled that the term `interlocutory order' in section 397(2) of the 1973 Code has been used in a restricted sense and not in any broad or artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or the liabilities of the parties. Any order which substantially affects the right of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order, because that would be against the very object which formed the basis for insertion of this particular provision in section 392 of the 1973 Code. Trustworthiness and veracity of the witnesses being most valuable and essential aspect of the criminal trial, we are of the opinion that the decision on the issue whether the witness should be permitted to be cross-examined with reference to his previous statement does touch the most important aspect of the trial and also deals with the substantive rights of the complainant. On the basis of the tests laid down in the aforesaid judgment of the Apex Court, we are of the opinion that the impugned order, therefore, will not be an `interlocutory' within the meaning of section 397 of the Code of Criminal Procedure.
18. That being our finding this Court can entertain a revisional petition challenging the said order and as such whether the petition under Article 226 of the Constitution or under section 482 of the Code of Criminal Procedure will be maintainable, becomes academic issue.
19. That takes us to the next and most contested issue between the parties i.e. what is the effect of the judgment of the Apex Court . Shri Ovalekar, learned Counsel appearing for the accused contended that in view of the final order contained in paragraph 242 to the effect that all proceedings in this matter subsequent to the directions of the Apex Court dated 16-2-1984 as indicated in the judgment are set aside and quashed, must mean that the evidence and the statement of the witnesses recorded by the High Court at the earlier stage have become nonest or nonexistent. Shri Ovalekar in this behalf brought to our notice meaning of word `quash' as given in the Law Lexicon of British India published by Madras Law Journal Office, 1940 edition as also a dictionary of Modern Legal Usage by Bryan A. Garner, 1987 edition. In the dictionary of Modern Legal Usage the word `quash' has been defined as under:
"quash-(1) to suppress or subdue; to crush out, beat into pieces; (2) to annul; to make void (as a writ or indictment); to put an end to (as legal proceedings). Sense (2) is the more frequent legal meaning : "Their petition for writ of certiorari was granted on December 11, 1980, but was subsequently quashed for lack of prosecution".
In the Law Lexicon of British India the word `quash' has been defined as under:
"Quash-To overthrow or annul, to make void; to abate (Tomlins Law Dic) (as) Quashing a conviction.
Mr. Abbott, in his Law Dictionary, defines `quash' to mean to annul, overthrow, or vacate by judicial acts.
Where proceedings are irregular, void, or defective, the courts, will quash them both in civil and criminal cases. An indictment which is so defective that no judgment can be given on it, or where there is no jurisdiction will be quashed. The remedy is applicable only to irregular, defective, or improper proceedings".
Shri Ovalekar therefore, submits that nothing remains of the record and proceedings and there is no question of any previous statement being in existence in the form of deposition before the High Court. Shri Ovalekar next contended that the final order mentions' as indicated in the judgment'. Shri Ovalekar therefore, attempted with specific reference to various paragraphs of the judgment of the Apex Court to show that the effect must be that all proceedings including depositions have become nonest or nonexistent for all material purposes. In this behalf Shri Ovalekar referred to paragraphs 19, 23, 25, 58, 60, 78, 79, 80, 86, 95, 114, 116, 241 and 242. He especially emphasised the contents of paragraph 58 thereof. Shri Ovalekar also emphasised the contents of paragraph 86 which reads as under:
"In the aforesaid view of the matter and having regard to the facts and circumstances of the case, we are of the opinion that the legal wrong that has been caused to the appellant should be remedied. Let that wrong be therefore, remedied. Let right be done and in doing so let no more further injury be caused to public purpose".
We must observe that these observations of the Apex Court are clearly in the context of plea of the Advocate for Shri Antulay that no further trial should take place. This is important because in the ultimate order it is directed that the trial shall proceed in accordance with law. Shri Ovalekar also emphasised paragraph 80 of the judgment which reads as under:
"In giving the directions this Court infringed the constitutional safeguards granted to a citizen or to an accused and injustice results therefrom. It is just and proper for the Court to rectify and recall that injustice, in the peculiar facts and circumstances of this case".
Shri Ovalekar also brought to our notice the contents of paragraph 114 of the judgment wherein Venkatachaliah, J., has observed as under:
"If the appeal is accepted, it will have effect of blowing off, by a side wind as it were, a number of earlier decisions of different Benches of this Court, binding inter partes, rendered at various stages of the said criminal prosecution including three judgments of Five Judge Benches of this Court. What imparts an added and grim poignance to the case is that the appeal, if allowed, would set to naught all the proceedings taken over the years before three successive Judges of the High Court of Bombay and in which already 57 witnesses have been examined for the prosecution...."
He also specifically brought to our notice the observations in paragraph 241 of the judgment to the following effect:
"...Volumes of testimony, we are told, have been recorded and numerous exhibits have been admitted as evidence. Though the trial is only at the stage of framing charges, the trial being according to the warrant procedure, a lot of evidence has already gone in and the result of the conclusion of Sabyasachi Mukharji, J., would be to wipe the slate clean. To take the entire matter back at this stage to square one would be the very negation of the purpose of the 1952 Act to speed up all such trials and would result in more injustice than justice from an objective point of view."
In the submission of Shri Ovalekar these various paragraphs are the indications and this indication in the submission of the learned Counsel, clearly show that nothing remains of the proceedings which took place before the High Court. After having given our anxious thought to all the submissions and after having gone through the Supreme Court judgments in the field carefully with particular attention to various paragraphs brought to our notice by Shri Ovalekar we are unable to accept that the effect of the Supreme Court judgment is to make all proceedings as if nonexistent. The effect of the Supreme Court judgment in our opinion, is to deprive proceedings, evidence and the statements made therein of all legal efficacy meaning thereby it can never be treated as evidence as such. The said evidence can never be the basis of any conviction and the proceedings were set aside meaning thereby the proceedings were terminated. It is one thing to say that the proceedings before the High Court are quashed and set aside and therefore, ineffective and quite another to say that the effect is that certain depositions that were recorded by the High Court, have become nonest or nonexistent for all purposes. We are of the opinion that so far as the provisions of section 145 of the Evidence Act are concerned, what is material is the existence of previous statement. We do not see how the effect of the Supreme Court judgment could be to make physical facts nonexistent. The dictionary meaning of the word `quash' has to be understood with relation to and in the context of the proceedings in which the word is used. As stated earlier even the dictionary of Modern Legal Usage by Bryan A. Garner mentions that `Sense (2) is the more frequent legal meaning' and (2) to annul, to make void (as a writ or indictment), to put an end to (as legal proceedings). In the circumstances we are of the view that the learned Special Judge was clearly in error in holding that the Supreme Court judgment made all the previous statements recorded before the High Court nonest or nonexistent.
20. So far as the submission of Shri Ovalekar to the effect that the learned Special Judge has exercised his discretion under section 154 and therefore, this Court should not interfere with the same, is concerned, it requires to be noticed that reliance placed by Shri Ovalekar in that behalf on an subsequent order passed by the learned Judge, at a subsequent stage, of the very same witness, cannot be taken into consideration while deciding this petition. In the impugned order the learned Judge in paragraph 19 referred to the submissions of Shri Ovalekar to the effect that no other ground apart from what is stated in the present application is shown for seeking permission under section 154 of the Evidence Act to put question to the said witness in the nature of cross-examination. The learned Judge observed "there is no other animosity or any other ground shown for putting questions to the said witness in the nature of cross-examination under section 154 of the Evidence Act, then what is stated in the present application". However, as observed by the Apex Court in the matter of Shri Rabindra Kumar Dey v. State of Orissa, . "Section 154 confers a judicial discretion on the Court to permit cross-examination and does not contain any conditions or principles which may govern the exercise of such discretion. The discretion must be judiciously and properly exercised in the interests of justice. The law on the subject is well-settled that a party will not normally be allowed to cross-examine its own witness and declare the same hostile, unless the Court is satisfied that the statement of the witness exhibits an element of hostility or that he has resiled from a material statement which he made before an earlier authority or where the Court is satisfied that the witness is not speaking the truth and it may be necessary to cross examine him to get out the truth". In the present case we have already made a reference to the contents of the application. Read properly the application makes a specific averment that the evidence of the witness before the Court is clearly contradictory to what he had stated on the earlier occasion and in our opinion this was indeed relevant for use of discretion under section 154 of the Evidence Act.
21. It was further submitted that in any case in view of the decision of the Apex Court, the High Court Judge or Judges who recorded the evidence of the various witnesses had no jurisdiction and as such the said deposition cannot be utilised as previous statement for the purpose of contradicting the witnesses under the provisions of section 145 of the Evidence Act. In that behalf it is necessary to notice that so far as section 145 of the Indian Evidence Act is concerned, what is relevant is the previous statement and the section no where puts any other limitation with reference to such previous statement, excepting that it has to be in writing or reduced into writing. Difference between the provisions of section 145 and section 157 of the Indian Evidence Act, is very relevant on this aspect. Under section 157 in order to corroborate the testimony of the witness, any former statement made by such witness relating to the same fact at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved, whereas under section 145 a witness may be cross-examined as to previous statements made by him in writing or reduced into writing and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. In our opinion it is not necessary that the previous statements have to be before the person having jurisdiction in the matter or before the person legally competent to record the statements. The fact that the witness has made previous statement only is relevant in that behalf. Reliance placed on behalf of the complainant on the decision of the Patna High Court reported in A.I.R. 1946 Patna 82, Ramkrishun Sao and others v. Experor, is justified. The Division Bench of the Patna High Court in the aforesaid case has held as under:
"Previous statement of a witness reduced to writing can be used in cross-examination under section 145 but the section does not lay down that the writing which is to be used for the purposes of cross-examination must be by a person having jurisdiction to reduce that statement to writing.
Therefore, even though the previous statements of a witness recorded by a Special Magistrate under the Special Criminal Courts Ordinance 2(2) of 1942, must on the declaration of that Ordinances as illegal be taken to have been recorded by a Magistrate who had no jurisdiction to record the same, the statements can still be used under section 145 for the purpose of cross-examining the witness".
In the case of State (Complainant) v. Pareswar Ghasi (accused), , the Division Bench of the Orissa High Court in paragraph 15 of the judgment have dealt with the meaning of word `investigation' as found in section 157 of the Indian Evidence Act. The Division Bench observed as under:
"In the facts and circumstances of this case, we hold that P.W. 14 was not a person legally competent to investigate the factum of identification within the meaning of section 157 of the Evidence Act. Ex. 9 and the evidence of P.W. 14 cannot, therefore, be used for purpose of corroboration of the evidence of P.W. 1. It need hardly be stated that Ex. 9 is a former statement of P.W. 1 and can be used for contradiction under section 145 and for impeaching his credit under section 155. The restrictions imposed in section 157 do not find place in section 145 or 155 of the Evidence Act".
At this stage we would also make a reference to the decision cited by Shri Mirajkar, learned Counsel appearing for the State. In A.I.R. 1960 Bombay 476, State of Bombay v. Seikh Kadar Seikh Amir and others, the learned Single Judge of the Nagpur Bench of this Court was dealing with reference to section 155 of the Code of Criminal Procedure wherein the learned Sessions Judge, made a reference recommending that the order passed by the Magistrate II Class, Khamgaon, ordering that the statements of witnesses recorded by the police in the investigation of a non-cognizable offence under section 22 of the Cattle Trespass Act should not be made available to the accused who are being prosecuted on charges under sections 379, Indian Penal Code, and section 22, Cattle Trespass Act, should be set aside. The learned Magistrate in the said case had held that the statements could not be made available to the accused because the offence under section 22, Cattle Trespass Act, was a non-cognizable offence and could not be investigated by the police without the permission of the Magistrate. The learned Additional Sessions Judge, however, held that the ground stated by the learned Magistrate is not correct because under section 145 of the Evidence Act a witness can be contradicted by his previous statement made by him to the police in the course of the investigation given if a police officer was not competent and had no jurisdiction to record that statement. The learned Sessions Judge also relied on Ramkishun Sao v. Emperor, A.I.R. 1946 Pat. 82. The learned Single Judge observed that the view taken by the learned Additional Sessions Judge that under section 145 of the Evidence Act a witness can be contradicted by his previous statement made by him orally and reduced to writing by a police officer not having jurisdiction to record is no doubt correct, because a witness can always be contradicted by his previous statement to whomsoever made and in whatever manner made.
22. The next case relied upon by Mr. Mirajkar is the case , State of Punjab v. Sh. Vishwajit Singh and others. In paragraph 15 of the judgment the learned Judge referred to the arguments of the learned Counsel therein to the effect that the former statement of Dr. Ali was recorded by the order of the Court which had no jurisdiction, and, that therefore, it could not be used even for the purpose of contradiction or corroboration or shaking his credit. The learned Judge of that Court was not impressed with this argument, and that the statement of a person does not cease to be his statement merely because it was written in the aforementioned circumstances. Even if the Court had not passed the order for recording the statement and the statement would have been recorded, such a statement could be made use of for the purpose of sections 145, 155, and 157 of the Evidence Act. In our opinion the aforesaid decision to support the submissions made on behalf of the Government to the effect that so far as the provisions of section 145 of the Indian Evidence Act are concerned, the fact that the statements were recorded by the Court having no jurisdiction is irrelevant. Despite the lack of jurisdiction in the Court which recorded the statement, it still, in our judgment, remains as previous statement for the purpose of section 145 of the Indian Evidence Act. Relying upon the decision in A.I.R. 1963 S.C. 1531, Ukha Kolhe v. The State of Maharashtra, and 1940(1) All England Law Reports 618, (R. v. Cronin), it was submitted by Advocate Ovalekar for the accused that the proceedings of the Court having no jurisdiction, were bad abinitio and therefore, those proceedings including depositions were not be made use of in any manner for any purpose whatsoever. We do not feel that the said authorities lay down any such proposition.
23. We may make a reference to the submissions of Shri Ovalekar that if the witnesses are required to be cross-examined with reference to their statements recorded before the High Court and if the statements are accepted or admitted as correct, they would form part of substantive evidence and that should not be allowed, as the effect of the Supreme Court judgment is in any case to deprive these statements of any evidentiary value. The argument though very attractive in the first blush, does not bear scrutiny. The previous statement can become part of the substantive evidence not by its own force, but only if the witness chooses to admit the same and accept the correctness thereof. Therefore, if at all such apprehension is there, the statement may become a substantive evidence not by its own force but because of volition of a particular witness. In that view of the matter we do not think that by permitting a witness to be cross-examined with reference to his previous statement, in the facts and circumstances of the case would amount to making the statement becoming substantive evidence which statement was deprived of that efficacy by the Apex Court.
24. Shri Ovalekar, relying on the case , Anwarali Sarkar & others v. The State, submitted that inasmuch as the High Court had no jurisdiction to record the deposition of the witnesses it will be impermissible for the trial Court to raise a presumption under section 80 in relation to the record produced before the trial Court. Undoubtedly the decision of the Calcutta High Court on which reliance is placed by Shri Ovalekar supports his submission. However, in the very same judgment the learned Judge of the Calcutta High Court has also indicated that at best in such situation if at all presumption may not be available, but it will be always open to the parties to prove existence of the previous statement otherwise in accordance with the Evidence Act. We are deliberately not dealing any further with this submission inasmuch as this stage has yet to be reached and we refrain from forestalling any proper investigation and use of judicial discretion in that behalf on the part of the learned Judge of the trial Court.
25. In the result, the petition succeeds. The order passed by the learned Judge of the trial Court on 13-3-1992 at Exh. 267 before the trial Court is hereby quashed and set aside.
26. We are informed that on the earlier occasion about 32 witnesses are examined before the learned Special Judge who were also examined before the High Court and according to the complainant about 6 witnesses have resiled from their previous statements before the High Court. As such it may be necessary to recall the witnesses. However, we are making it absolutely clear that our order shall not be construed that all witnesses are automatically to be recalled and the complainant will have to make out a case in respect of each witness under section 154 of the Evidence Act and the learned trial Judge shall deal with such request according to the provisions of section 154 and 145 according to law and in the light of the observations in this judgment. Rule made absolute in the above terms.
Issuance of certified copy expedited.