Sikkim High Court
Karmapa Charitable Trust And Ors vs State Of Sikkim And Ors on 15 June, 2020
Author: Meenakshi Madan Rai
Bench: Meenakshi Madan Rai
Virtual Court No. 2
HIGH COURT OF SIKKIM
Record of Proceedings
W.P.(C) No. 04 of 2020
KARMAPA CHARITABLE PETITIONERS
TRUST & OTHERS
VERSUS
STATE OF SIKKIM & OTHERS RESPONDENTS
Date: 15.06.2020
CORAM:
THE HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
For Petitioners Mr. B. Sharma, Senior Advocate.
Mr. K.K. Rai, Senior Advocate.
Mr. Shiv Kumar Pandey,
Advocate.
Mr. N.T. Bhutia, Advocate.
For Respondents
R-1 & R-2 Dr. Doma T. Bhutia, Additional
Advocate General.
Mr. Hissey Gyaltsen, Assistant
Government Advocate.
R-3 Mr. N. Rai, Senior Advocate.
Mr. Anmole Prasad, Senior
Advocate.
Mr. Zangpo Sherpa, Advocate.
Ms. Yangchen D. Gyatso,
Advocate.
Mr. Sagar Chettri, Advocate.
O R D E R (ORAL)
1. Pursuant to the Order of this Court dated 24.03.2020, copy of the Petition has been served upon the Caveator- Respondent No.3 who had filed Caveat Petition No.02 of 2020.
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2. All Respondents are represented by their respective learned Counsel today. They waive formal Notice.
3. I.A. No.01 of 2020, a stay application, has also been filed by the Petitioners along with the Writ Petition seeking stay of the impugned Order, dated 12.02.2020.
4. Heard learned Senior Counsel for the Petitioners and Respondent No.3.
5. Learned Additional Advocate General for Respondents No.1 and 2 had no submissions to make.
6. The Petitioners herein are aggrieved by the Order dated 12.02.2020, passed by the learned District Judge, East Sikkim at Gangtok, in Title Suit No.01 of 2017 (Karmapa Charitable Trust and Others vs. State of Sikkim and Others) inter alia on grounds that it was ordered as follows;
"Given the facts and circumstances, it would suffice if the Plaintiffs are given three(03) days time for the cross-examination of the Defendant No.3."
7. Learned Senior Counsel Mr. K.K. Rai, while assailing the Order, canvassed the contention that the evidence of Respondent No.3 (Defendant No.3 in Title Suit No.01 of 2017 supra) is being recorded before the learned Commissioner, a retired District Judge. The witness is only conversant in the Tibetan vernacular and the cross-examination is being conducted with the aid of two Interpreters viz. Mr. Jigmee Wangchuk Bhutia, Post Graduate Teacher, Enchey Senior Secondary School, Gangtok and Mr. Ugen Tsewang, Ex-Translator, Namgyal Institute of Tibetology, Gangtok. Consequently, the recording of the evidence of Respondent No.3 in the said circumstances becomes protracted as it has to be translated from the Tibetan vernacular to English and then only recorded thereby requiring substantial amount of time. The learned Commissioner, during cross-examination of the Respondent No.3, has never observed Page 2 Virtual Court No. 2 HIGH COURT OF SIKKIM Record of Proceedings that the Petitioners had asked any irrelevant questions. However, the impugned Order came to be passed and the curtailment of time for cross-examination of Respondent No.3 to three days would lead to miscarriage of justice and is contrary to the basic tenets of fair trial, hence the instant application praying that the impugned Order be set aside and ten days' time be granted to the Petitioners to cross-examine the Respondent No.3.
8. Learned Senior Counsel for the Respondent No.3, for his part, advanced the argument that the witness was being subjected to harassment by prolonged cross-examination and irrelevant questions being put to him. The cross-examination is sought to be continued only for the purpose of badgering the witness by asking pointless and arbitrary questions when, in fact, the cross-examination has covered the main aspects of the case and the Petitioners do not require more than a day for recording further evidence. Such dilatory tactics has humiliated and traumatized the Respondent No.3 as scant consideration is paid to the fact that he is a senior citizen and in frail health. In fact, the learned trial Court has correctly considered that the witness has already been examined for four days and therefore permitted three days further time for his cross-examination. That, the learned trial Court is clothed with powers to control the time limit for the cross-examination for which reliance was placed on the ratiocinations of R.K. Chandolia vs. CBI & Ors.1, D.P. Sinha vs. Brig. E.T. Sen (Retired)2, Dineshbhai Zaverbhai Vora vs. State of Gujarat 3 and Yeshpal Jashbhai Parikh vs. Rasiklal Umedchand Parikh 4. That, in consideration of the above submissions, the petition deserves a dismissal.
12012 SCC Online Del 2047 2 1969 SCC Online Del 201 3 2018 Cri.LJ 1588 4 AIR 1955 Bombay 318 Page 3 Virtual Court No. 2 HIGH COURT OF SIKKIM Record of Proceedings
9. I have carefully considered the rival submissions of learned Counsel at length. I have also perused the orders of the learned Commissioner, cross-examination of the Respondent No.3 and the impugned Order, for the instant purpose, including the citations made at the Bar.
10. It may relevantly be noticed that the essence of cross- examination is that it is the interrogation by the Advocate of one party, of a witness called by his adversary, either with the object of obtaining admissions favourable to his cause or to discredit the witness. All questions which are asked with a view to assail the evidence-in-chief are permissible and no provision of law requires cross-examination to be confined to what is only volunteered by the witness. The objective of cross-examination is thus to elicit the truth and also detect the falsehood in the evidence-in-chief. It thus becomes the bounden duty of the Counsel towards his client to take necessary steps in this context to uphold what is right and just and to expose a dishonest witness. At this juncture, reference may be made to Section 151 of the Indian Evidence Act, 1872 ("Evidence Act") which provides that the Court may forbid any questions or inquiries which it regards as indecent or scandalous, although such questions or inquiries may have some bearing on the questions before the Court, unless they relate to facts in issue or to matters necessary to be known in order to determine whether or not the facts in issue existed. Thus, Section 151 of the Evidence Act prohibits questions to elicit indecent or scandalous imputations from the witnesses in the guise of shaking the credibility of any witness and every trial Court is empowered to forbid such questions. Section 152 of the Evidence Act requires that the Court shall forbid any questions which appears to be intended to insult or annoy, or which, though proper in itself, appears to the Court needlessly offensive in form. This Section is self-explanatory and Page 4 Virtual Court No. 2 HIGH COURT OF SIKKIM Record of Proceedings the learned trial Court can forbid questions which tend to offend public decency and are intended to insult or annoy the witness.
11. It is not the case of the Respondent No.3 that scandalous or indecent questions were put to the witness nor has there been any intention to insult the witness although the cross- examination being conducted may be cumbersome to him. The allegation against the Petitioners is that the witness is being badgered and the cross-examination being prolonged unnecessarily. This allegation evidently has no legs to stand. The object of cross-examination has already been elucidated supra. It is not denied that the witness is only familiar with the Tibetan vernacular as a result of which the evidence deposed by him is required to be translated for the benefit of the parties and then only recorded. It is obvious that this process would be long- winded and would involve a substantial amount of time. Admittedly, the evidence is being recorded before the learned Commissioner, a retired District Judge. As pointed out by learned Senior Counsel for the Petitioners, the learned Commissioner has made no remark that the Petitioners have asked irrelevant questions during the cross-examination of the Respondent No.3. In fact, at this juncture, it would be relevant to extract the Order of the learned Commissioner, dated 23.11.2019, which inter alia reveals as follows;
"Date is fixed for further evidence of the defendant No.3. However, the same could not be taken up for the reason that as the defendant No.3 who has to attend some important religious conference at Dharamsala, he will not be able to attend for his cross-examination till March, 2020.
Shri Chezung Bhutia, the Constituted Attorney of the defendant No.3 filed an application for adjournment with a copy to the learned Counsel for the plaintiffs.
In the adjournment petition, it is stated under para 1 that the matter has been fixed for evidence of the defendant No.3 at Siliguri commencing from 19.11.2019 till 22.11.2019 as mutually settled between the respective Counsels with the Page 5 Virtual Court No. 2 HIGH COURT OF SIKKIM Record of Proceedings Commissioner. This statement is not correct as I was not told that the evidence of the defendant No.3 would be held only from 19.11.2019 till 22.11.2019. It is fact that I was informed that the evidence would commenced (sic) from 19.11.2019 at Siliguri but no date was fixed or decided that same should be completed by 22.11.2019."
(Emphasis supplied) This is being extracted to indicate the conduct of the Respondent No.3 which is not above board.
12. The records reveal that the evidence of the Respondent No.3 commenced from 19.11.2019, the cross- examination commenced on the same day and continued for four days till 22.11.2019. This Court is conscious and aware that the learned trial Court is clothed with powers to limit the time frame for cross-examination. Nevertheless the peculiar facts and circumstances of the instant matter and the stakes involved have to be taken into consideration which therefore dictates that parties do not get the impression of being short-changed.
13. Thus, in light of the submissions of learned Counsel for the Petitioners and the Respondent No.3 and in consideration of the peculiar circumstances of the instant matter, although the prayer of learned Senior Counsel for the Petitioners seeking ten days for further cross-examination cannot be allowed, however in the interest of justice, I am of the considered opinion that a total period of ten days can be allowed for cross-examination which includes the four days in which the witness has already been examined. Hence, the Petitioners are allowed an additional six days time for further cross-examination of the Respondent No.3 inclusive of the day it commences and concludes. The dates shall be fixed as deemed fit by the learned trial Court duly taking into consideration the prevailing Covid-19 pandemic and the precautions necessarily to be observed. It is expected and trusted that the Petitioners will not venture into irrelevant, Page 6 Virtual Court No. 2 HIGH COURT OF SIKKIM Record of Proceedings random and manifestly vexatious questions during cross- examination.
14. The impugned Order dated 12.02.2020 passed by the learned District Judge, East Sikkim at Gangtok in Title Suit No.01 of 2017 (Karmapa Charitable Trust and Others vs. State of Sikkim and Others) is modified to the extent above.
15. Writ Petition disposed of accordingly as also all other pending applications.
16. Copy of this Order be forwarded to the learned trial Court for information and compliance.
Judge 15.06.2020 ml Approved for reporting: Yes Page 7