Madras High Court
Superintendent Of Police, C.B.I. vs The Addl. Superintendent, Special ... on 14 December, 1994
Equivalent citations: 1995(1)CTC13
ORDER Arunachalam, J.
1. This appeal is directed against the order of a learned Single Judge of this Court dismissing Writ Petition No. 18581 of 1994 preferred by the appellant herein, who had pleaded for issue of a writ of mandamus directing the respondent therein, the Additional Superintendent, Special Sub-Jail, Poonamallee, to cause production of accused No. 3, Sriharan alias Murugan in CC. No. 3 of 1992 on the file of Designated Court No. I at Poonamallee, before the said court on all the dates of hearing as per the production warrant issued by the said Designated Court.
2. Facts which led to the preferring of Writ Petition No. 18581 of 1994 will have to be stated in brief. In CC. No. 3 of 1992 aforestated, twenty-six accused are facing trial, on the basis of, final report laid on 20-5-1992. 1014 witnesses have been cited in the charge sheet, besides mentioning the need to mark 907 documents and the necessity of production of 1904 material objects. All the 26 accused are lodged in the Special Sub-Jail, Poonamallee, which is situated abutting the Court Complex, to facilitate easy access between the Jail premises and the Court Hall. It appears that, of the 26 accused, 13 are Sri Lankan Tamils, who are hard-core LITE militants or staunch supporters of the said organization. All the accused enjoy A class status in jail. On requests made by one or other of the accused to appoint counsel at the expense of the State to defend them, several members of the Bar were so appointed by the Designated Court for the accused concerned. Though an advocate was appointed to defend Sriharan alias Murugan (A-3) at the expense of the State, for reasons best known to him, he refused to accept the advocate so appointed and instead chose to defend himself. Even A-2, A-5 and A-6, who have now requested for change of counsel at the expense of the State, are regularly attending Court and taking part in the trial. In the trial, which commenced on 19-1-1994, till now, 65 prosecution witnesses have been examined and 220 documents have been marked and 94 material objects have been produced.
3. Sriharan alias Murugan (A-3) who was all the while defending himself in person, commenced absenting himself from Court proceedings wilfully and deliberately for no valid or just reason from 20-10-1994. In the absence of A-3, the Designated Court was proceeding with the trial by invoking the provisions under Section 14(5) of the TADA Act, as against him. It is the definite case of the writ petitioner (writ appellant as well) that there are a number of coded (secret) witnesses coming from other States as well as from other countries, most of whose evidence can be recorded only with the aid of translators engaged for that purpose. Amongst the coded witnesses, many face grave threat to their lives and once they are discharged from the witness box, it will be very difficult to bring them back, in the event of A-3 seeking to cause production of those witnesses for the purpose of cross-examination. In the event of A-3 seeking to invoke his right under Section 14(5) of TADA Act, the prosecution will be seriously handicapped and put to undue hardship, since it will be almost impossible to keep track of these witnesses after their examination in Court and discharging them, because of the existence of threat to their lives. Further, if such a course were to be adopted, the progress of trial would be unduly impeded, running contra, to the concept of, a speedy and expeditious trial. In that event, due to such delay, the co-accused as well are bound to be prejudiced.
4. In view of the above difficulties, in addition to oral representations, a petition was filed on behalf of the prosecution on 26-10-1994, before the Designated Court Seeking directions to the jail authorities to produce A-3 in Court during examination of P.W.65, a coded witness from Karanataka State. Her evidence had to be translated, because her mother tongue is Canarese. A translator from Mysore was procured. Production of A-3 in Court was necessary to help the Court ascertain whether he was desirous of cross-examining the said witness. However, the Designated Court returned the petition, with an endorsement that it was unnecessary, for orders have already been issued under Section 267 of the Code of Criminal Procedure, for production of A-3, while ordering extension of remand, on the report of the Jail Superintendent. On 31-10-1994, P.W.65 was discharged. The grievance of the writ petitioner is that the jail authorities had not produced A-3 before Court, while returning the warrant, by filing a report, that A-3 was refusing to attend Court and if they were to use force to produce him, it would result in the jail staff and the accused sustaining bleeding injuries. The jail authorities have also further stated in their report, that in spite of their attempts to produce A-3, he had stubbornly refused to attend Court and if they were to take further efforts to cause his production, there was likelihood of bloodshed. On the basis of this report, the Designated Court was extending remand of A-3. It appears from the affidavit of the writ petitioner, that certain witnesses from foreign countries are expected to be put into the witness box and almost all of them are coded (Secret) witnesses. If A-3 were not to be produced before Court, it will result in these witnesses being discharged, after they tender evidence, without cross-examination by A-3 . In the event of A-3 pleading for recall of those witnesses for cross-examination at a later stage, risk, inconvenience and enormous expense would be involved and it may not be feasible or practical to produce those coded witnesses over again before the Designated Court. Therefore, the jail authorities were bound to produce A-3 in Court, when examination of those category of witnesses would be taken up by the Designated Court. According to the writ petitioner an obligation is cast on the Additional Superintendent in-Charge of Special Sub-Jail, Poonamallee, a statutory authority, to carry out the directions of the Designated Court in the matter of production of remand prisoner (A-3) as contemplated under Sections 3 and 6 of Prisoners (Attendance in Court) Act, 1955 and Sections 267 and 269 of the Code of Criminal Procedure. The Additional Superintendent, Special Sub-Jail, Poonamallee, can abstain from carrying out the orders of Court only when the said prisoner is declared unfit to be removed from prison, where he is confined by reason of sickness or other infirmity. In the instant case, failure to produce A-3 in obedience to lawful direction of the Designated Court, would amount to failure to exercise statutory jurisdiction vested in the jail authorities.
5. When the writ petition was heard by Shivaraj Patil, J., Mr. R. Muthukumaraswamy, learned Special Government Pleader, appearing on behalf of jail authorities, stated that the Additional Jail Superintendent was not taking an attitude of adversary with regard to the contentions raised by the petitioners. According to him, the Jail authorities were sincere and serious in making efforts to produce A-3 before the Designated Court. Even after 10-11-1994, after a statement was made before the learned single Judge, they were taking serious, sincere and persistent efforts within the permissible limits to have A-3 produced before the Designated Court. Having regard to the existing fact situation, it would not be possible to use any more force. Therefore, it was pleaded on behalf of the respondent that appropriate orders may be passed by this Court.
6. Learned Single Judge did not wish to express his opinion either way on the merits of the contention of petitioner's counsel about the prejudice that will be the consequence, if the trial were to be proceeded with, in the absence of A-3, subject to his right to cross-examine under Section 14(5) of the Act, for it was, for the Designated Court to pass appropriate orders under the said provision. Again, the learned Single Judge observed, that in the event of A-3 seeking to recall any witness or witnesses for cross-examination, it would be the duty of the appropriate court to pass appropriate orders at that stage, in accordance with law, having regard to the facts and circumstances of the case, may be even including taking into consideration the conduct of A-3 in refusing to attend Court, and not availing the opportunity given to cross-examine the witnesses. Learned single Judge was further of the opinion that in view of the specific provision under Section 482 of the Code of Criminal Procedure, it was open to the petitioner to obtain orders in exercise of such powers to the extent necessary, to give effect to any order under the Code or to prevent abuse of process of Court or otherwise to secure the ends of justice. Learned Single Judge observed, that if the petitioner has an alternative and efficacious remedy provided in the Code itself in respect of matters arising in a trial, it would not be proper to entertain a writ petition, for issue of a mandamus. Learned Single Judge further observed that he had one more reason to refuse to entertain the writ petition having regard to Section 19 of the TADA Act, under which, notwithstanding anything contained in the Code, an appeal shall lie as a matter of right from any judgment, sentence or order, not being an interlocutory order of a Designated Court, to the Supreme Court, both on facts and law and that except as aforesaid, no appeal or revision shall lie to any Court from any judgment sentence or order including an interlocutory order of a Designated Court. Under such process of reasoning, learned Single Judge declined to entertain the writ petition and rejected it even at the stage of admission.
7. When this writ Appeal came up for admission, it was felt necessary, that Sriharan alias Murugan (A-3 in C.C.No. 3 of 1992) should also be made a party in this appeal for the furtherance of the cause of justice. The Writ Appellant included A-3 as the second respondent in the writ appeal, the other respondent being the Additional Superintendent, Special Sub-Jail, Poonamallec. This Court ordered production of the second respondent, Sriharan alias Murugan, on 6-12-1994 in the event of his inclination to appear before this Court in person. The second respondent, on receipt of notice, expressed his decision to appear before this Court on 6-12-1994 and accordingly, he was produced before us on the said date.
8. Mr.P.Rajamanickam, learned counsel appearing on behalf of the appellant, submitted that no order of the Designated Court was being challenged and hence seeking recourse under Section 482 Cr.P.C. may not arise. He was emphatic in his submission, that Section 19 of the TAD A Act will not be a bar, for entertaining of this writ petition, for all that was asked, was a mandamus directing the first respondent to perform his statutory duty cast on him by law and more specifically on the orders of production issued by the Designated Court. He then contended, that the first respondent can abstain from production of the accused only on the grounds mentioned in Section 269 of the Code of Criminal Procedure and Section 6 of Prisoners (Attendance in Court) Act, 1955 and not otherwise. He stated, mat production of A-3 before the Designated Court was necessary, to facilitate him, to cross- examine the prosecution witnesses, if he chooses to do so, thereby obviating the difficulties of securing the attendance of witnesses from foreign countries or other States over again, after they are discharged from the witness-box consequent to their examination in chief and cross-examination by other accused. He also submitted, that the consequence of the second respondent persistently refusing to attend and exercising his right to cross-examine them, at this stage, may tend to his exercising this right, to recall those witnesses at a later point of time, and in the event of the prosecution not being able to produce them later, A-3 would have achieved his ulterior object, for incriminating evidence given by those witnesses against him, may not be possible to be used against him, due to the impossibility of offering those witness for cross-examination.
9. Mr. Muthukumaraswamy, learned Special Government Pleader appearing on behalf of the first respondent, in absolute fairness, submitted that attempts should be made at all points of time, to produce A-3 before the Designated Court, and when ordered and necessary and that the bona fide difficulties already expressed before the learned Single Judge may be taken note of by us. He further submitted, that this Court may have to resolve this impasse, so that the majesty of law and the interest of justice shall stand preserved. On the legal and factual issues, Mr. B. Sriramulu, learned Public Prosecutor, rendered useful assistance.
10. On the request of the Writ Appellant as well as the first respondent, we agreed to have the hearing of this writ appeal in camera, for reasons of security. It was also brought to our notice that on the grounds of security, trial in C.C. No. 3 of 1992 was being held in camera.
11. Second respondent Sriharan alias Murugan appeared before us, on his production by the authorities concerned. He submitted that he was averse to in camera proceedings and he did not require any security whatever. He placed before us a memorandum in writing, wherein he has stated, that it was erroneous to call him, as a hard-core LTTE militant and such dubbing was made by SIT Police for the purpose of advertisement. Interests of justice would not require in camera proceedings.
12. We questioned the second respondent in our chambers. He admitted having received all relevant papers in this Writ Appeal. He admitted that he had expressed his intention before the Designated Court not to be defended by a lawyer. He also stated that he was defending himself. To a specific question as to why he was not attending proceedings, in the Designated Court, he replied that his request for conduct of the case in public was not acceded to. When he was informed that under certain contingencies, proceedings in camera can be held, on the exercise of judicial discretion by the Judge concerned, he replied that his written application in opposition for conduct of proceedings in camera, would suffice. When he was specifically told, that in the event of his wilful non-appearance before the Designated Court, in spite of sufficient opportunities being afforded to him, to be present and cross-examine as well, the witnesses put into the box by the prosecution, evidence of such witnesses were likely to be taken against him, he answered that though he liked the law in general in India, he was averse to irregularities in the trial judiciary and that was the reason for his not attending proceedings before the Designated Court. Second respondent was informed that by deserting Court proceedings on his own volition, without just cause, he was tending to wilfully forfeit the valuable right of cross-examination of several witnesses, who are to be put into the witness box, from other States or foreign countries, whose evidence, then would go uncontradicted as against him. He submitted, that answers given by certain witnesses, while he cross-examined them, stood altered and therefore he was afraid that he may not get justice from the Designated Judge. He wanted the Designated Judge to be transferred. He was informed that the issue involved, in the writ appeal was restricted, and if he was desirous of seeking transfer of the Designated Judge, he may have to prefer necessary applications before the Supreme Court, in which event, the said prayer may be decided on its inherent merits. He was made aware, that in the event of the version of a witness not having been correctly recorded, in his opinion, he can always have the witness questioned over again, with the permission of the Court to rectify the deficiencies if any, and this grievance of his cannot then exist. At this stage, Mr. Rajamanickam, appellant's counsel, stated that such opportunities had been utilised by the second respondent. This was not disputed by the second respondent. The other grievance of the second respondent was that the police officers were promoting the witnesses, while they were in the witness box and even the lawyers were threatened. It was made known to him, that the presiding officer of a Court will always be vigilant and if any specific instance of prompting of witnesses could be brought to the notice of the Court, that could always be remedied. Even otherwise, we observed, that if this grievance of the second respondent was true, it will have to be held to be weighty and in general we will be inclined to issue directions to the Designated Judge, not to allow such erring officials inside the Court Hall, when evidence was being recorded. It was pointed out to the second respondent, that the Court was bound to inform him, of all the reasonable opportunities available under law to him, which he should unhesitatingly utilise, if, as stated by him, he has respect for law, for no body can claim to be above law. He was repeating in the same trend to questions of a similar nature. He was particular that the evidence in this Calendar Case must be recorded on a tape and in camera proceedings should be avoided. To specific questions about his future appearance before the Designated Court and his utilising the opportunity afforded to him to cross-examine witnesses, he reiterated his lack of confidence in the Special Judge and added that he can be given some time to offer his statement in writing. Such time was afforded and after about twenty minutes, the second respondent presented a written statement before us, wherein he has stated that to answer the two questions, namely, whether he will appear before the Designated Court and cross-examine the witnesses, he found it very difficult under the present circumstances. In terms of his letter addressed to the Designated Court on 21-10-1994, he had lost confidence in the Special Judge and that was the reason for his boycotting Court proceedings and unless his grievances are remedied, those grievances being transfer of the Designated Judge and tape-recording of the proceeding and allowing public trial, he was not inclined to exercise the right afforded to him by law, for, by exercising such right, no useful purpose would be served, Therefore, he was not desirous of participating in the trial proceeding before the Designated Court. He has requested us to take note of his other grievances expressed in person.
13. We are very sure about our limitations in view of the special provisions under the TADA Act. In this writ appeal, we are not called upon to decide, about the merits of the prosecution or the defence cases in the pending Calendar Case, and only in respect of non-exercise of a statutory duty by the first respondent, a mandamus has been prayed for, during the course of which the procedural difficulties that the prosecution may be bound to face, have been highlighted and underlined. As has been observed by the Supreme Court in Kartar Singh v. State of Punjab , though the High Courts have very wide powers under Article 226, the very vastness of the powers imposes on it the responsibility to use them with circumspection and in accordance with the judicial consideration and well established principles. After referring to certain provisions under TADA Act, referable to bail, Supreme Court stated, that if any party was aggrieved by the order, the only remedy under the Act was to approach the Supreme Court by way of appeal. If the High Courts were to entertain bail applications invoking their extraordinary jurisdiction under Article 226 and pass orders, then the very scheme and the object of the Act and the intendment of the parliament would be completely defeated and frustrated. But, at the same time, it cannot be said that the High Courts have no jurisdiction. If the High Court was inclined to entertain any application under Article 226, that power should be exercised very sparingly and only in rare and appropriate cases, in extreme circumstances. What those rare cases are and what would be the circumstances that would justify entertaining of applications under Article 226, cannot be put in strait-jacket. However, the Supreme Court desired to emphasize and re-emphasise that the judicial discipline and comity of courts required that the High Court should refrain from exercising their jurisdiction in entertaining bail applications in respect of an accused indicted under the special Act since that Court had jurisdiction to interfere and correct the orders of the High Court under Article 136.
14. On the conspectus of facts, stated by us, this is one of the rarest of rare cases, where the need to exercise powers under Article 226 of the Constitution have arisen, to put an end to the stalemate apprehended to be the consequence, by the nonparticipation of A-3 (second respondent herein) in the trial before the Designated Court by appearing before it and utilising the valuable right of cross-examination of coded witnesses. Cross-examination is intended to diminish the effect of evidence in chief-examination, which, of course, again can be explained by re-examination, though it has to be necessarily confined to matters arising out of cross-examination. The veracity of a witness is tested with reference to answers given in cross- examination. It is the principle of natural justice that no man should be condemned unheard (audi alterant partem). It is on this principle that natural justice ensures that both sides should be heard fairly and reasonably. A part of this principle is that if any reliance is placed on evidence on record against a person, then that evidence or record must be placed before him for his information, comment and criticism. Cross-examination is certainly procedural justice. It is governed by rules of evidence. In other words, it is legal and statutory justice. Natural justice certainly includes, that any statement of a person, before it is accepted against somebody else, that somebody else should have an opportunity of meeting it, whether by way of interrogation or by way of comment. So long as the party charged has a fair and reasonable opportunity to see, comment and criticise the evidence on which the charge was made against him, the demands and tests of natural justice would then stand satisfied. The statutory right to cross-examine in a criminal case can be viewed from the stand point of Article 21 of the Constitution as well. If no person shall be deprived of his life or personal liberty, except according to procedure established by law, then that procedure must answer the test of reasonableness and should not be arbitrary or harsh. The right to cross-examine a prosecution witness, thus appears to be a constitutional safeguard against any arbitrary deprivation of life or personal liberty, which stands jeopardised in a criminal case. It cannot be disputed that every right has a duty correlatable to it. When a right is afforded, a duty is cast on the person concerned to utilise it unless, due to reasons beyond his control, he was unable to utilise the opportunities afforded to him, to exercise such a right. If, in spite of reasonable opportunities being afforded to a person like the second respondent (A-3) in the instant writ appeal, he fails wilfully to exercise the said right of cross-examination, on grounds, which do not cast any impression of reasonableness, then it can safely be concluded, that the second respondent is treading through a path of no return, whereby he tends to forfeit his valuable right to cross-examine the witnesses produced by the prosecution, be it coded category or otherwise. A person deliberately and wilfully refusing to exercise his right for appearance and cross-examination in spite of his having been made aware of the consequences, cannot be heard at a later point of time, to contend that the had a valuable opportunity of cross-examining certain witnesses and hence they should be recalled or tendered for cross-examination. There is no doubt that under Section 14(4) of the TADA Act, notwithstanding anything contained in the Code of Criminal Procedure, a Designated Court may, if it thinks fit and for reasons to be recorded by it, proceed with the trial in the absence of the accused or his pleader and record the evidence of any witness subject to the right of the accused to recall the witness for cross-examination. The Principle of natural justice and procedural justice form part of this action, which affords an opportunity to the concerned accused in whose absence, evidence of witnesses stood recorded, to have them recalled for cross-examination. This section does not take in its fold the wilful absence, without just or reasonable cause, of an accused similarly placed as the second respondent herein. In the event of bona fide reasons making it impossible for an accused to be present in Court, during recording of evidence, then this provision for recalling of such of those witnesses, whose evidence was recorded in the absence of the accused for cross- examination, would come into operation. It is not as though this section contains a strait-jacket formula, requiring the Court to recall witnesses for cross-examination, any time and every time, on the requisition made by an accused, in spite of his deliberate, planned and wilful abstaining from Court proceedings and refusing to exercise the valuable prerogative and right to cross- examine witnesses, who may tend to depose against him. In other words, by their own conduct, persons similarly placed as the second respondent, dig their own grave, by choosing to forfeit the valuable right afforded to them in law, equity and justice. A fair play, in trial proceeding, is sought to be thwarted by unreasonable, planned and deliberate absenteeism and refusing active participation in the trial proceeding. It is the normal law under the Code of Criminal Procedure that except as otherwise provided, all evidence shall be taken in the course of a trial or other proceeding in the presence of the accused, or, when his personal attendance is dispensed with, in the presence of his pleader. Every rule has an exception and one such exception is carved out under Section 14(5) of the TADA Act. Second respondent submitted that Section 14(5) cannot stand in his way, for it was possible to conduct a trial only in the event of the absence of the accused or his pleader and not in the absence of both of them. He again reiterated, to a Court question that he had not engaged a counsel and was not interested in engaging one. If that be so, recording of evidence in the presence of his pleader certainly gets erased. If the second respondent, as we have already stated, was absenting himself from Court proceedings, without a just cause. Section 14(5) of the Act cannot come to his rescue. The principles of law will have to be interpreted in consonance with the objects sought to be achieved and not in derogation of the same.
15. We have told enough and more to the second respondent, that due to his attitude now exhibited, he was walking out of all protections that the law had afforded him, probably irrevocably, and that he must make himself aware of this serious predicament. Second respondent submitted in writing, on his becoming aware of all these details, that he will not be able to appear before the Designated Court and utilise his right in law to cross-examine the witnesses.
16. If such is the stand of the second respondent, no useful purpose will be served in directing the first respondent to produce him before the Designated Court even by using force, for mere presence inside the Court Hall cannot result in a solution, for even then, on his own expression in writing, second respondent was not inclined to utilise his right of cross- examination, afforded to him in law, unless his requests for a public trial, tape-recording of evidence and change of the presiding officer are conceded.
17. While there cannot be a second opinion that the first respondent is bound to produce the second respondent before the Designated Court, not only under the provisions of law, which cast a duty due to the power conferred on him, but also on the directions issued by the Designated Court, by employing such means as are reasonable necessary for such execution, as observed by the Supreme Court in Matajog Dobey v. H.C. Bhari , the factual situation in a given case cannot be totally overlooked. There cannot be divergence that, if, in the exercise of power, of performance of official duty, improper or unlawful obstruction or resistance is encountered, there must be the right to use reasonable means to remove the obstruction or overcome the resistance. This procedure, as stated by the Supreme Court, accords with common sense and does not seem contrary to any principle of law. The first respondent shall act, as and when directed by the Designated Court and in accordance with the provisions of law, in respect of production of the second respondent, we are bound to state, that no specific orders to the first respondent would be necessary in this writ appeal by issue of a mandamus, though we uphold the contentions of the appellant that a general duty is cast on the first respondent, we have discussed earlier.
18. We are in agreement with Shivaraj Patil, J.,that the Designated Court has sufficient powers in the present state of affairs, to utilise his judicial discretion in the event of the second respondent seeking to exercise his right, at a later point of time, to recall and wilfully not utilising the reasonable opportunities afforded to him, several times, to preserve the principles of natural justice and procedural justice. Of course, the discretion will be that of the Designated Judge and the Designated Judge alone, who is bound to take note of the entire circumstances, while exercising such discretion. However, we have our own reservations about the applicability of the provisions of Section 482, Cr.P.C. which, in the opinion of the learned Single Judge, would afford an alternative remedy.
19. It is also possible to comprehend that, at any point of time, the second respondent, realising that his attitude in boycotting the proceedings and not exercising his valuable rights may cause him more harm than good, may choose to appear before the Designated Court for active participation in the conduct of trial. We say this much and nothing more.
20. We felt that brooding over theoretical possibilities can lead only to a dead end and hence practicalities must attract our attention to put an end to the present impass, and in that light we have underlined the rights contemplated, the duties expected and the possible consequence of wilful dereliction of Court proceedings coupled with wanton refusal to utilise the valuable opportunity afforded for cross-examination.
21. This appeal shall stand disposed of accordingly. There will be not order as to costs.