Karnataka High Court
State By Bellary vs D Muniyappa on 29 November, 2012
Author: N.Ananda
Bench: N. Ananda
1
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 29TH DAY OF NOVEMBER 2012
BEFORE
THE HON'BLE MR. JUSTICE N. ANANDA
CRIMINAL APPEAL No.1128/2007
BETWEEN
State By Bellary
Lokayuktha Police ... Appellant
(By Sri M.B.Gundawade, Advocate)
AND
D.Muniyappa
Sub-Inspector of Police
Law and Order
Rural P.S. Hospet. ... Respondent
(By Sriyuths Ashok R.Kalyanshetty & J.Basavaraj, Advocates)
This appeal is filed under section 378(1) and (3)
Cr.P.C., praying to grant leave to file an appeal against
judgment dated 08.12.2006 in Special Case No.57/1998, on
the file of Prl.District Judge at Bellary, acquitting the
respondent-accused for offences punishable under sections
7, 13(1)(d) r/w section 13(2) of the Prevention of Corruption
Act, 1988.
This appeal coming on for final hearing this day, the
court delivered the following:
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JUDGMENT
The respondent-accused was tried and acquitted for offences punishable under sections 7, 13(1)(d) r/w 13 (2) of the Prevention of Corruption Act, 1988 (for short, 'the Act').
2. I have heard learned counsel for parties.
3. The charges framed against accused read thus:-
"That you while working as Sub-Inspector of Police (L & O) of Hospet Rural Police Station, while discharging your duty as a public servant, on 19.1.98 when CW-1 complainant T.Nagendrappa, PC-303 Hospet Rural Police Station, approached you for forwarding his representation in the form of appeal memo to the S.P., Bellary, with regard to his LWA period of 10 days from 8.11.1997 to 17.11.1997, for modification, you demanded an amount of Rs.2,000/- as illegal gratification as a motive or reward from CW1 to show an official favour for making favourable recommendation and for forwarding the said representation. In furtherance of the said demand, you received an amount of Rs.1,500/- as illegal gratification as a motive or reward from CW1 to show an official favour viz., for forwarding the representation 3 of CW.1 in the form of appeal memo to S.P., Bellary and thereby committed an offence punishable under section 7 of Prevention of Corruption Act, 1988 and within my cognizance.
Secondly, on the said date, place and time, while working as Sub-Inspector of Police, by corrupt or illegal means obtained for yourself a pecuniary advantage by accepting an amount of Rs.2,000/- from CW.1 complainant for showing official favour viz., for forwarding his representation in the form of appeal memo to S.P., Bellary, and thereby committed criminal mis-conduct in discharging of your duty punishable U/s.13(1)(d) and committed an offence punishable U/s. 13(2) of Prevention of Corruption Act, 1988 and within the cognizance of this court."
4. The accused pleaded not guilty.
5. On behalf of prosecution, PW1 to PW8 were examined. The documents as per Ex.P.1 to Ex.P.23 were marked. The material objects were marked as M.O.1 to
10. 4
6. After examination of accused under section 313 Cr.P.C., he had filed written statement in support of his defence.
7. The learned trial Judge acquitted accused by accepting defence of the accused that PW6- Sathyanarayana, who at the relevant time working as Sub-Inspector of Police of T.B.Dam Police Station had borrowed a sum of Rs.500/- from accused, who at the relevant time was working as Sub-Inspector of Police of Hospet Rural Police Station. On 22.01.1998, PW6 had sent a sum of Rs.500/- to accused through first informant PW3-T.Nagendrappa, who at the relevant time was working as a Police Constable in Hospet Rural Police Station. The accused believing that PW6 had sent a sum of Rs.500/- through PW3 to him, received a sum of Rs.500/- from PW3. The accused had neither demanded nor accepted alleged gratification. The 5 learned Special Judge has recorded aforestated finding on the basis of evidence of PW3-T.Nagendrappa and PW6-Sathyanarayana.
During cross-examination of PW3-T.Nagendrappa, it is elicited, that at the relevant time, PW6 was working as Sub-Inspector of Police of T.B.Dam Police Station and PW6 was frequently visiting Hospet Rural Police Station and he was often taking hand loan from accused.
8. PW6-Sathyanarayana was examined before trial court on 29.03.2006. PW6 in his examination-in-chief has deposed; at the relevant time, he was working as Sub-Inspector of Police, T.B.Dam Police Station; accused was working as Sub-Inspector of Police of Hospet Rural Police Station; PW6 was often taking hand loan from accused; on 01.01.1998, PW6 had borrowed a sum of Rs.500/- from accused and returned the same 6 to accused. On 05.01.1998, he had gone personally and repaid a sum of Rs.500/- to accused.
During cross-examination of PW6, it is elicited after returning a sum of Rs.500/- to accused on 05.01.1998, he had taken hand loan of Rs.500/- from accused. PW6 was personally returning loan and some times he used to return loan amount to accused through some other persons. On 29.03.2006, after cross-examination, PW6 was discharged. The evidence of PW8 (Investigating Officer) was recorded on 27.04.2006 and evidence for prosecution was closed. On 24.06.2006, accused was examined under section 313 Cr.P.C. On the same day, accused filed written statement, specifically contending that on 22.01.1998 at about 9 p.m., when he was verifying certain documents in Hospet Rural Police Station, PW3 came and told that his elder brother was serious and PW3 wanted to avail 7 leave. PW3 wrote a leave letter and gave it to accused and leave was sanctioned. PW3 went out of police station and again came back and told accused that PW6 had returned hand loan, which PW6 had taken from accused. PW6 had sent the amount to accused through PW3, so saying, PW3 kept the amount on the table of accused. Therefore, accused has contended that what was received by him from PW3 was not the bribe amount. The accused has contended that he had neither demanded nor accepted bribe amount. On the other hand, he had received a sum of Rs.500/- from PW3, which according to him was loan amount sent by PW6 to accused through PW3.
9. The learned Special Judge heard the arguments on 20.07.2006, further arguments on 22.07.2006 and arguments were concluded on 02.08.2006, on which day case was reserved for judgment. The case was 8 posted to 23.08.2006 for further arguments, however the reasons for reverting the stage of case to further arguments are not found in the order sheet.
10. The ordersheet dated 07.09.2006 discloses that case was posted for further arguments. On 07.09.2006, accused filed an application under section 311 Cr.P.C., reading as hereunder:-
"The prosecution in order to prove its case examined 8 witnesses and closed its side. At the time of examining PW6-Sathyanarayana, P.S.I., the accused has not furnished some of the material instructions to cross examine the said PW.6. After cross examination of PW.6, the accused has furnished some of the important instructions and those instructions furnished by the accused requires for the further cross examination of PW.6.
At the time of cross examination of PW.6, since the instructions is recently furnished by the accused are not within his 9 knowledge and that at the time of cross examination those facts were not elicited in the cross examination of PW.6. The same is not intentional and for bonafide reasons. Hence for the above said reasons, it is just and necessary to recall the PW.6 for further cross examination."
11. The learned counsel for Lokayukta Police filed objections, inter alia contending that PW6 has been effectively cross-examined by the learned counsel for accused, there are no valid reasons to recall PW6 for further cross-examination and prayed for dismissal of application. The aforestated application was accepted by the learned Special Judge in terms of the following order:-
"Perused application filed by the
accused U/s.311 of Cr.P.C. and the
objections to the said application filed by the learned Public Prosecutor.
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The contents of the application show that while cross-examining PW.6, the accused has not furnished some of the material instructions to cross-examine said PW.6, the accused has furnished some of the important instructions and considering the said instructions, it is necessary to further cross-examine PW.6. Considering the grounds mentioned in the application, it is just and necessary to re-call PW.6 for further cross-examination. Accordingly, application filed U/s.311 of Cr.P.C. is allowed." Thereafter, PW6 was recalled for further cross- examination by learned counsel for accused. On 27.10.2006, PW6 was further cross-examined by learned counsel for accused. During further cross- examination, it was elicited from PW6 that on 10.01.1998 he had borrowed a sum of Rs.500/- from accused. On 22.01.1998, he sent a sum of Rs.500/- to accused through PW3-T.Nagendrappa. When PW6 was 11 near Dam Circle, PW3 was proceeding towards Hospet from Koppal.
12. The learned counsel for Lokayukta police noticing self contradicting evidence given by PW6 and having regard to the contents of previous statement of PW6 recorded under section 161 Cr.P.C., sought permission of court to treat PW6 as hostile and the learned Special Judge permitted learned counsel for Lokayukta Police to cross-examine PW6.
During cross-examination of PW6 by learned counsel for Lokayukta Police, attention of PW6 was drawn to a portion of his statement recorded under section 161 Cr.P.C. PW6 has categorically denied when his statement was recorded by the Investigation Officer, he had not stated that on 22.01.1998, he had not sent a sum of Rs.500/- to accused. The said contradictory portion was marked as Ex.P.23.
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13. On 27.11.2006, learned counsel appearing for Lokayukta Police filed an application under section 296 Cr.P.C., along with an affidavit of the Investigating Officer namely PW8-M.M.Dhowla. In the application, it is stated that PW6 has contradicted his statement recorded under section 161 Cr.P.C., and contradictory portion is marked as Ex.P.23. In order to bring on record contradiction marked as Ex.P.23, it is necessary for the prosecution to examine PW8. Since the evidence of PW8 is going to be formal in nature, as such, the prosecution has produced affidavit of PW8 and prayed that affidavit of PW8 may be accepted as evidence as it is formal in nature.
14. The affidavit filed by PW8 on 24.11.2006 reads thus:-
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"AFFIDAVIT I, M.M.Dowla S/o. M.Abdul Nabi, Age 57 years, Addl. Superintendent of Police, Bidar District, Bidar, do hereby state on oath as under:
1) That I am the investigation officer in the above noted case and as such I am conversant with the facts of the case.
2) That I have already given my evidence in the above case regarding the investigation done by me.
During the course of my investigation, I have recorded the statement of Sri Sathyanarayana, P.S.I. and has stated before me that "¢£ÁAPÀ 22/01/1998 gÀAzÀÄ £Á£ÀÄ AiÀiÁgÀ PÉÊAiÀÄ®Æè gÀÆ.500/- UÀ¼À£ÀÄß ²æà r.ªÀÄĤAiÀÄ¥Àà ¦.J¸ï.L. gÀªÀjUÉ vÀ®Ä¦¸À®Ä ºÀt PÉÆnÖ PÀ¼ÀÄ»¹gÀĪÀŢݮè" which has been marked as Ex.P-23.
Hence, this affidavit.
Place: Bidar Sd/-
Date: 24/11/2006 DEPONENT
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VERIFICATION
I, M.M.Dowla S/o. M.Abdul Nabi, Age
57 years, Addl.Superintendent of Police Bidar District, Bidar, do hereby swear on oath that the contents of the above affidavit are true and correct to the best of my knowledge and belief.
Place:Bidar Sd/-
Date:24/11/2006 DEPONENT"
15. The learned Special Judge accepted the
application. The learned counsel for accused submitted that there is no further cross-examination of PW8 by the learned counsel for accused. The learned Special Judge heard the arguments on 27.11.2006 and reserved the case for judgment. On 08.12.2006, learned Special Judge acquitted the accused.
16. The learned Special Judge has ignored the relevant provisions of Criminal Procedure Code. It is needless to state that a criminal trial is governed by 15 Criminal Procedure Code, subject to the provisions of special enactments whenever offences under special enactments are tried.
17. Under section 5 of the Act, learned Special Judge shall follow the procedure prescribed for trial of warrant cases by the Magistrate under Criminal Procedure Code.
18. Under proviso to section 243 Cr.P.C., when accused has cross-examined or had opportunity of cross-examining any witness before entering on his defence, the attendance of such witness shall not be compelled under this section, unless the Magistrate is satisfied that it is necessary for the ends of justice.
19. Section 311 Cr.P.C., provides for power to summon material witness, or examine person present. Section 311 Cr.P.C., reads thus:-
"311. Power to summon material witness, or examine person present 16 Any court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re- examine any person already examined; and the court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case."
20. The law is fairly well settled that discretion vested with the court under section 311 Cr.P.C., has to be exercised judiciously and not arbitrarily.
In the case on hand, evidence of prosecution was concluded on 27.04.2006. The examination of accused under section 313 Cr.P.C., was completed on 24.06.2006. On the same day, accused had filed written statement in defence of his case. The learned Special Judge heard arguments on 20.07.2006, 22.07.2006 and 02.08.2006. Thereafter, case was reserved for judgment. 17 On 23.08.2006, case was re-opened and posted for further arguments for the reasons not found in the order sheet. The case was again adjourned to 07.09.2006 to hear further arguments. The learned Special Judge has not recorded reasons to post the case for further arguments, which was reserved for judgment on 02.08.2006. On 13.09.2006, aforestated application under section 311 Cr.P.C., was filed by learned counsel for accused and it was accepted by learned Special Judge in terms of the order extracted supra.
21. From the aforestated proceedings, it is clear that application under section 311 Cr.P.C., was filed after accused had entered defence by filing his written statement.
22. After the evidence of prosecution was concluded and accused was examined under section 313 Cr.P.C., accused had filed written statement, which clearly 18 implies that he had entered upon defence. In the circumstances, when the application under section 311 Cr.P.C., was filed on 07.09.2006, the case was reserved for judgment and the case was re-opened for hearing.
23. Under section 22 of the Act, the provisions of section 243 Cr.P.C., have been made applicable to the proceedings in relation to offences under the Act, subject to following modifications:-
(a) in sub-section (1) of section 243, for the words "The accused shall then be called upon", the words "The accused shall then be required to give in writing at once or within such time as the court may allow, a list of persons (if any) whom he proposes to examine as his witnesses and of the documents (if any) on which he proposes to rely and he shall then be called upon" had been substituted;19
In the circumstances, learned Special Judge should have referred to the provisions of section 243 Cr.P.C., before accepting the application filed to recall PW6 for further cross-examination.
24. It is obvious from the application filed by accused under section 311 Cr.P.C. and evidence given by PW6, after he was recalled and cross-examined by learned counsel for accused, PW6 had been won over by accused. It is only after ensuring this fact, an application was filed to recall PW6, which in fact was readily accepted by the learned Special Judge. At the relevant time, accused was working as Sub-Inspector of Police. Immediately after trap, he had filed his statement. When accused was trapped, PW6 was present. The Investigation Officer has recorded statement of PW6 under section 161 Cr.P.C. The accused after examination under section 313 Cr.P.C., 20 had filed written statement in defence of his case, which would clearly reveal that accused had received a sum of Rs.500/- from PW3 at 9 p.m., on 22.01.1998 (at the time of trap) and accused was under the impression that PW6 had sent a sum of Rs.500/- to him through PW3. In the circumstances, contention of accused that he had omitted to give material instructions to learned counsel for accused when PW6 was cross-examined on 29.03.2006 and accused was able to recollect these omissions on 07.09.2006 looks highly improbable. The learned Special Judge has ignored provisions of section 4(4) of the Act, which imposes mandatory duty on the learned Special Judge to hold trial of offences punishable under the Act on day-to-day basis as far as practicable.
25. The learned counsel for Lokayukta Police instead of recalling PW8 (Investigating Officer) for further cross- 21 examination to bring on record contradictory portion marked as Ex.P.23, elicited through PW6 had made an application under section 296 Cr.P.C., along with affidavit of PW8, which has been extracted supra and it was readily accepted by the learned Special Judge. Section 162 Cr.P.C., provides mandatory procedure for use of statements recorded under section 161 Cr.P.C.
26. Section 162 Cr.P.C., reads thus:-
"162. Statements to police not to be signed: Use of statements in evidence.
(1) No statement made by any person to a police officer in the course of' an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made:22
Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of' his statement, if duly proved, may be used by the accused, and with the permission of' the Court, by the prosecution, to contradict such witness in the manner provided by section 145 of the Indian Evidence Act, 1872 (1 of 1872); and when any part of' such statement is so used, any part thereof' may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination.
(2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of section 32 of the Indian Evidence Act, 1872 (1 of 1872), or to affect the provisions of section 27 of that Act.
Explanation: An omission to state a fact or circumstance in the statement referred to in sub-section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission 23 amounts to a contradiction in the particular context shall be a question of fact.
27. After further cross-examination of PW6 by the learned counsel for accused on 27.10.2006, the learned Special Judge accepting request of the learned counsel for Lokayuktha Police, permitted him to treat PW6 as a hostile witness. During cross-examination of PW6 by the learned counsel for Lokayuktha Police, when attention of PW6 was drawn to his statement recorded under section 161 Cr.P.C., PW6 denied that he had not given statement to the effect "that on 22.01.1998 he had not sent a sum of Rs.500/- to accused". This contradiction was marked as Ex.P.23. In all fairness, the learned Special Judge should have recalled PW8 to bring on record this material contradiction marked as Ex.P.23.
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28. The learned counsel for Lokayukta Police has not realised his responsibility to conduct the case in the manner known to law. The learned counsel for Lokayuktha Police instead of making an application to recall PW8 for further examination to bring on record Ex.P.23 (material contradiction) in the manner provided under section 162 Cr.P.C., had invoked section 296 Cr.P.C., to file the affidavit of Investigation Officer in lieu of his further examination-in-chief and that application was also readily accepted by learned Special Judge. Thereafter, submission of learned counsel for accused that he has no further cross-examination of PW8 was also accepted.
29. Thus, I find that learned trial Judge has not concluded the trial in accordance with the provisions of Criminal Procedure Code. The criminal trial should not only be fair to accused but it should also be fair to 25 prosecution. If criminal trial is conducted in derogation of mandatory provisions of Criminal Procedure Code that would amount to subversion of rule of law. In my considered opinion, the learned counsel for Lokayukta Police, the learned counsel for accused and the learned Special Judge have failed to follow mandatory provisions of Criminal Procedure Code.
30. PW6 was recalled for no valid reason. The learned Special Judge has not assigned reasons for accepting the application filed by accused under section 311 Cr.P.C. The learned Special Judge having concluded trial in the aforestated manner has entirely relied on the evidence of PW6 to accept the defence version put forth by accused that on the date of trap, PW6 had returned loan amount of accused through PW3 (first informant). The accused was under the impression that what was paid by PW3 to him at the time of trap was hand loan 26 returned by PW6 to accused through PW3. In my considered opinion, trial was not properly concluded. The acceptance of application of accused under section 311 Cr.P.C., without valid reasons and ignoring the mandatory provisions of section 243 Cr.P.C., has not resulted in a fair trial. The learned Special Judge should have permitted examination of the Investigating Officer (PW8) before the court to bring on record contradiction (Ex.P.23) elicited by Public Prosecutor after PW6 was treated as hostile witness.
31. In a decision reported in AIR 1999 SC 2161 (in the case of State of Kerala Vs. Babu & others), the Supreme Court has held:-
"6. Section 161 of the Code provides that the police officer investigating a case is entitled to examine any person and reduce the statement of such person in writing. This statement recorded by a police officer under Section 161 even though is a previous statement for the 27 purpose of Section 145 of the Evidence Act, such statement can be used for the purpose of establishing a contradiction or impeaching the credit of the witness only in the manner provided for in Section 162 of the Code. The use of the previous statement recorded under section 161 of the Code is controlled by Section 162 of the Code. The proviso which actually controls the use of Section 162 of the Code reads thus:-
"Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution to contradict such witness in the manner provided by Section 145 of the Indian Evidence Act, 1872 (I of 1872); and when any part of such statement is used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination."28
32. The learned Special Judge has ignored the contradiction (Ex.P.23) elicited during cross- examination of PW6 by learned Public Prosecutor as it was not part of evidence and it was not brought on record in the manner provided under section 162 Cr.P.C. In the impugned judgment, learned Special Judge has not even stated that PW6 had turned hostile. In any event, learned counsel for Lokayukta Police could not have relied on contradiction statement marked as Ex.P.23 as the Investigating Officer (PW8) was not examined before the court to bring contradiction (Ex.P.23) as evidence on record.
33. In a decision reported in 2008 AIR SCW 2206 (in the case of Himanshu Singh Sabharwal Vs. State of M.P. & Others), the Supreme Court has held:-
"6. The principle of fair trial now informs and energises many areas of the law. It is reflected in numerous rules and 29 practices. It is a constant, ongoing development process continually adapted to new and changing circumstances, and exigencies of the situation - peculiar at times and related to the nature of crime, persons involved - directly or operating behind, social impact and societal needs and even so many powerful balancing factors which may come in the way of administration of criminal justice system.
7. As will presently appear, the principle of a fair trial manifests itself in virtually every aspect of our practice and procedure, including the laws of evidence. There is, however, an overriding and, perhaps, unifying principle. As Deane J put it:
"It is desirable that the requirement of fairness be separately identified since it transcends the content of more particularized legal rules and principles and provides the ultimate rationale and touchstone of the rules and practices which the common law requires to be observed in 30 the administration of the substantive criminal law".
8. This Court has often emphasised that in a criminal case the fate of the proceedings cannot always be left entirely in the hands of the parties, crimes being public wrongs in breach and violation of public rights and duties, which affect the whole community as a community and harmful to the society in general. The concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts through the State and prosecuting agencies.
Interests of society is not to be treated completely with disdain and as persona non grata. Courts have always been considered to have an over-riding duty to maintain public confidence in the administration of justice - often referred to as the duty to vindicate and 31 uphold the 'majesty of the law'. Due administration of justice has always been viewed as a continuous process, not confined to determination of the particular case, protecting its ability to function as a Court of law in the future as in the case before it. If a criminal Court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. Courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in relation to proceedings, even if a fair 32 trial is still possible, except at the risk of undermining the fair name and standing of the judges as impartial and independent adjudicators.
9. The principles of rule of law and due process are closely linked with human rights protection. Such rights can be protected effectively when a citizen has recourse to the Courts of law. It has to be unmistakably understood that a trial which is primarily aimed at ascertaining truth has to be fair to all concerned. There can be no analytical, all comprehensive or exhaustive definition of the concept of a fair trial, and it may have to be determined in seemingly infinite variety of actual situations with the ultimate object in mind viz whether something that was done or said either before or at the trial deprived the quality of fairness to a degree where a miscarriage of justice has resulted. It will not be correct to say that it is only the accused who must be fairly dealt with. That would be turning Nelson's eyes to the needs of the 33 society at large and the victims or their family members and relatives. Each one has an inbuilt right to be dealt with fairly in a criminal trial. Denial of a fair trial is as much injustice to the accused as is to the victim and the society. Fair trial obviously would mean a trial before an impartial Judge, a fair prosecutor and atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated. If the witnesses get threatened or are forced to give false evidence that also would not result in a fair trial. The failure to hear material witnesses is certainly denial of fair trial."
In the case on hand, I have narrated the facts and circumstances and flagrant violations of the provisions of section 162 Cr.P.C. Therefore, I am of the considered opinion that trial was not conducted in accordance with the mandatory provisions of Criminal Procedure Code 34 and Prevention of Corruption Act, 1988. In the circumstances, I have no option but to set aside the impugned judgment and remand the matter to learned Special Judge for reconsideration.
34. Therefore, I pass the following:-
ORDER The appeal is accepted. The impugned judgment is set aside. The matter is remanded to learned Special Judge for reconsideration with following directions:-
I. The learned Special Judge shall recall PW8 for further examination.
II. The learned counsel for Lokayukta Police is also at liberty to file an application to recall PW8 (Investigating Officer) for further examination to bring on record contradiction marked as Ex.P.23 in the manner provided under section 162 Cr.P.C.35
III. The learned Special Judge shall further examine the accused under section 313 Cr.P.C., if it is felt necessary. The learned Special Judge shall hear learned counsel for parties and decide the case on merits, within a period of six months from the date of receipt of a copy of this judgment.
IV. It is made clear that observations other than directions contained in this judgment shall not be construed as expression of opinion on merits of the case.
Office is directed to send back records along with a copy of this judgment to the trial court.
Sd/-
JUDGE SNN