Gujarat High Court
Dhruben Guraldas Balani vs State Of Gujarat on 1 July, 2021
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
R/SCR.A/8182/2018 ORDER DATED: 01/07/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 8182 of 2018
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DHRUBEN GURALDAS BALANI
Versus
STATE OF GUJARAT
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Appearance:
MR. BHADRISH S RAJU(6676) for the Applicant(s) No. 1
SAIRICA S RAJU(8761) for the Applicant(s) No. 1
PUBLIC PROSECUTOR(2) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 01/07/2021
ORAL ORDER
Heard learned Advocate Shri Bhadrish Raju for the applicant and learned Additional Public Prosecutor Ms. Maithili Mehta for the respondent State.
2. Learned Advocate Shri Raju submits that a draft amendment has been filed with the Registry and whereas he seeks permission to forward a soft copy thereof.
Permission is granted. By way of a draft amendment the applicant seeks amendment of prayer for recalling the witness Iswarbhai Narayanji Nayak. Draft amendment is granted. Amendment to be carried out forthwith.
3. By way of this application, applicant challenges order dated 15.05.2018 passed by the learned Sessions Court whereby the application made by the applicant -accused no. 6 Page 1 of 15 Downloaded on : Sat Jan 15 20:06:53 IST 2022 R/SCR.A/8182/2018 ORDER DATED: 01/07/2021 in Sessions Case No. 34/2014, Exh. 341 interalia requesting that certified copy of a gift deed dated 25.11.1999 executed by the mother of the witness PW 31, and to which deed the witness is the signatory to be permitted to be produced on the record of the case. The learned Sessions Court had rejected the said application interalia observing that the said document may not be relevant for the purposes of deciding the present case.
4. Learned Advocate Shri Raju has submitted that the learned Sessions Court ought not to have stated that the document may not be relevant for the purpose of deciding the Sessions Case, more particularly since while making such an application for producing documentary evidence the party should not be ordinarily required to state the reason for producing such document since the same may lead the accused to reveal his defence. Learned Advocate has further submitted that as such at the relevant point of time the learned Trial Court had not sought any clarification as to how the document concerned would be relevant for the purpose of deciding the said case and whereas it is submitted by learned Advocate Shri Raju that the document was required to be brought on record to question the credibility of the said witness in view of the fact that in his deposition the witness had denied having signed as a witness in the document in question.
5. Learned Advocate has further submitted that a similar question is already decided by this Court (Coram : J.B. Pardiwala,J.) in a petition being Special Criminal Application No. 4561 of 2015 vide order dated 22.09.2015 and he seeks to Page 2 of 15 Downloaded on : Sat Jan 15 20:06:53 IST 2022 R/SCR.A/8182/2018 ORDER DATED: 01/07/2021 rely upon the same.
6. Learned Advocate seeks to rely upon paras 10, 14, 15, 16, 19, 20 and 22 of the said judgment. The said para are quoted for benefit.
10. The endevour of the Court wherever there is a serious dispute with regard to the relevancy and admissibility of the question should be to elicit the answer of the witness after noting objections. The final decision to reject a particular piece of evidence as irrelevant or inadmissible can be if necessary taken at the end of the trial. Such procedure would benefit even the Appellate Court in a case where the question is disallowed or excluded from the evidence and the Appellate Court feels that the same was essential, it is at that stage not required to remit the matter for reexamination of the witness. The crossexamination is a very important tool of an accused to test the veracity of the evidence of the witness and discredit his trustworthiness. However,this does not mean that the trial Court will not exercise its discretion in disallowing the irrelevant questions. In State through Special Cell (supra), it was held as under:
"4. It is the case of the prosecution that after the investigation was completed the chargesheet was filed on 1452002. It is the case of the prosecution that copy of the transcripts of the intercepted conversation were given to the accused along with the chargesheet. On 872002 the respondents applied before the Special Judge seeking a direction that the intercepted conversation not be used as evidence in the trial for proving the charge(s) under POTA. The procedure which Page 3 of 15 Downloaded on : Sat Jan 15 20:06:53 IST 2022 R/SCR.A/8182/2018 ORDER DATED: 01/07/2021 the Special Judge should have followed is as laid down by this Court in the case of Bipin Shantilal Panchalv. State of Gujarat [(2001) 3 SCC 1: 2001 SCC (Cri) 417]. In this case it has been held as follows: (SCC pp. 56, paras 1216) "12. As pointed out earlier, on different occasions the trial Judge has chosen to decide questions of admissibility of documents or other items of evidence, as and when objections thereto were raised and then detailed orders were passed either upholding or overruling such objections. The worse part is that after passing the orders the trial court waited for days and weeks for the parties concerned to go before the higher courts for the purpose of challenging such interlocutory orders.
14. When so recast, the practice which can be a better substitute is this:Whenever an objection is raised during evidencetaking stage regarding the admissibility of any material or item of oral evidence the trial court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the court finds at the final stage that the objection so raised is sustainable the Judge or Magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course.(However, we make it clear that if the objection relates to deficiency of stamp duty of a document the court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed).
15. The above procedure, if followed, will have two Page 4 of 15 Downloaded on : Sat Jan 15 20:06:53 IST 2022 R/SCR.A/8182/2018 ORDER DATED: 01/07/2021 advantages. First is that the time in the trial court, during evidencetaking stage, would not be wasted on account of raising such objections and the court can continue to examine the witnesses. The witnesses need not wait for long hours, if not days. Second is that the superior court, when the same objection is recanvassed and reconsidered in appeal or revision against the final judgment of the trial court, can determine the correctness of the view taken by the trial court regarding that objection, without bothering to remit the case to the trial court again for fresh disposal. We may also point out that this measure would not cause any prejudice to the parties to the litigation and would not add to their misery or expenses.
16. We, therefore, make the above as a procedure to be followed by the trial courts whenever an objection is raised regarding the admissibility of any material or any item of oral evidence."
14 .The principles of examination of witnesses are delineated under Chapter 10 of the Evidence Act, almost, with mathematical precision. A witness can be examined to establish a fact in issue or a relevant fact.
These expression, in turn are defined under Section 3 of the Act. Under Section 136 of the Act, the trial Court is entitled to ascertain the purpose for which a particular witness is examined. It is only on being satisfiedthat the evidence of such witness would throw light on the facts in issue or the relevant fact, that he may be permitted to be examined. Section 138 of the Act incorporates certain important Page 5 of 15 Downloaded on : Sat Jan 15 20:06:53 IST 2022 R/SCR.A/8182/2018 ORDER DATED: 01/07/2021 principles in the mater of examination of the witness in chief. It insist that the examination in chief and cross must relate to the relevant facts. The cross examination, however, is not restricted to the facts, which are testified in the chief examination. As long as it relates to the relevant facts, the crossexamination cannot be confined to any limits.
15 .However, the essence of cross examination is that it is interrogation by the advocate of one party of the other party or his or her witness called by his adversary with the object either to obtain from such party/witness admissions favourably to his cause or to discredit him. Nobody likes to be cross examined and I suppose it is human tendency and yet cross examination is considered to be the most effective of all means of extracting the truth and exposing falsehood. It is stated in para 801 of the Halsbury's Laws of England, Third Edition,Volume 15 that the purpose of cross examination is that it is directed to (1) crediblity of the witness; (2) the facts to which he has deposed in chief, including cross examiner's version thereof; and (3) the facts to which the witness has not deposed but to which the cross examiner thinks he is able to depose. It is also stated therein that the failure to cross examine a witness on some material part of his evidence, or at all, may be treated as acceptance of the truth of that part or the whole of his evidence. The object of cross examination is two fold and that is to weaken, qualify or destroy the case of the opponent; and to establish theparty's own case by means of his opponent's witnesses (Phipson, 11th Ed p. 648). As per Powell, (9th Ed, p 532), the objects are to impeach the accuracy, credibility and general value of the evidence given in chief, to sift the facts already stated by the witness, to Page 6 of 15 Downloaded on : Sat Jan 15 20:06:53 IST 2022 R/SCR.A/8182/2018 ORDER DATED: 01/07/2021 detect and exposediscrepancies, or to elicit suppressed facts which will support the case of the crossexamining party. The exercise of this right is justly regarded as one of the most efficacious tests, which the law has devised for the discovery of truth. By means of it, the situation of the witness with respect to the parties and to the subject of litigation, his interest, his motives, his inclination and prejudices, his character, his means of obtaining a correct and certain knowledge of the facts to which he bears testimony, the manner in which he had used those means, his powers of discernment, memory and description are all fully investigated and ascertained and submitted to the consideration of the jury, (or the Court) who have an opportunity of observing his demeanor, and of determining the just value of his testimony. Considerable latitude is allowed in cross examination. It need not be confined to the facts elicited in examination in chief or to strictly relevant facts. The accused is entitled to cross examination to elicit facts in support of his defence from the prosecution witnesses wholly unconnected with the examination in chief. The cross examining advocate can even undertake to show at some subsequent stage that questions apparently irrelevant are really relevant. "Relevant facts" in cross examination must necessarily have a wider meaning then the term when applied to examination in chief. For instance the facts though otherwise irrelevant may involve questions affecting the credit of the witness and such questions are permissible in cross examination. Crossexamination is not limited to the matters upon which the witness has already been examined in chief but extends to the whole case (See Sarkar on Evidence, 15th Edition page 2172). It must also not be forgotten that Page 7 of 15 Downloaded on : Sat Jan 15 20:06:53 IST 2022 R/SCR.A/8182/2018 ORDER DATED: 01/07/2021 many a times the privilege of cross examination to credit is abused and this happens when the cross examiner allows himself to be a tool in the hands of unscrupulous litigant disrespecting his profession.
16.Under the scheme of the Indian Evidence Act, Chapter X deals with examination of witnesses and Section 137 gives a statutory right to the adverse party to crossexamine a witness examinedinchief. Section 138 gives the order of examination of witnesses. After defining what is a leading question in Section 141, law permits such questions to be put while the witness is under the crossexamination. Section 146 indicates the lawful ambit and scope of such crossexamination inter alia, by pointing out that questions which test the veracity of a witness or whichtend to discover who he is and what is his position in life, or which go to shake his credit by injuring his character, although the answer to such question might tend directly or indirectly to criminate him or might expose or tend directly or indirectly to expose him to a penalty orforfeiture, are within permissible precincts of that provision. Section 148 gives discretion to a Court to decide certain matters, as to whether or not a witness should be subjected compulsorily to answer, or whether, in its discretion, may proceed to warn the witness that he is not obliged to answer the question. The provisions of Section 148 open up by aqualifying clause that when such a question relates to a matter not relevant to a suit or proceeding, then the Court has discretion to decide as is indicated by the Section itself. It follows, therefore, that once a question, which is not relevant is put, the matter is within the discretion of the Court and it has to decide whether the witness has to be compelled to answer such a question or Page 8 of 15 Downloaded on : Sat Jan 15 20:06:53 IST 2022 R/SCR.A/8182/2018 ORDER DATED: 01/07/2021 whether a warning should ensue that the witness is not obliged to answer the same. The decision of the Court must reach either of these two results. While exercising the discretion in this regard what matters should be taken into account are enumerated in clauses (1) to (4) of Section 148 and one of those is that such questions are proper if the same are of such a nature that the truth of the imputation conveyed by them would seriously affect the opinion of the Court as to the credibility of the witness on the matter to which he testifies.
19. Thus the whole scheme has to be worked out within the limits of the crossexamination primarily indicated by Sec. 146 of the Act. In certain matters the Court has to decide whether the witness should be compelled to answer or whether he should be warned that he is not obliged to answer. The liability of the person asking the question is indicated by Sections 149 and 150. The power to forbid asking of such questions is referable to Sections 151 and 152. After mapping out this scheme, the legislature has enacted Section 155 which deals with impeaching credit of witnesses and also speaks of modes how the same has to be done. Such credit can be impeached by the adverse party so also by the party who calls the witness with the leave of the court and amongst others, if permitted, by tendering evidence of persons to testify that the witness was believed by them to be unworthy of credit, or by tendering proof that the witness was bribed or had the offer of bribe or had received any other inducement to give evidence, or by proof of former statements inconsistent with any part of the evidence given by him and in case of a prosecutrix, by leading evidence of her immoral Page 9 of 15 Downloaded on : Sat Jan 15 20:06:53 IST 2022 R/SCR.A/8182/2018 ORDER DATED: 01/07/2021 character. These provisions do in fact illustrate that the law permits, as a reasonable mode of defence, to put before the Court even further evidence so as to discredit a particular witness. Along with this the provisions of Section 146 permit questions which tend to shake the credit of a witness by injuring his character. Both these provisions will have to be considered together while deciding such matters.
20. The legislative intent has to be primarily found from the language employed in the enacting statute. The word 'credit' used in Sec. 146 is of a wide and varied connotation and has to be distinguished from the word 'character', though the latter may include the former. 'Credit' would take in belief, estimate of reputation, however, good character, and 'creditable' so construed would mean, honourable or trustworthy. The 'characte ' envisages a moral or ethical qualities of a person as a social being. Thus it is plain that the provisions of Section 146(3) permit a crossexaminer to put questions which will not only shake the credit of a witness, but which will also expose his ethical and moral behaviour which may ultimately weigh with the Court while evaluating orappreciating testimonial evidence. By its very nature questions on mala fides as opposed to bona fides, immorality as opposed to good morality, dishonesty as against honesty, falsehoods as against truthfulness, can all conceivably be put, provided there is necessity and foundation for the same. For further (sic) Section 155 expressly permits by indicating a mode and manner to bring in evidence upon the credit of a witness so as to impeach such testimony. Mere exercise by the media indicated by Section 155, without asking questions permissible under Section 146, may in a given case loose all Page 10 of 15 Downloaded on : Sat Jan 15 20:06:53 IST 2022 R/SCR.A/8182/2018 ORDER DATED: 01/07/2021 its effectiveness and would be futile. What could therefore be brought before the Court under Section 155 can surely be put to the witness nay, must be put while he is giving evidence in a cause. Looking to this interwoven scheme of statutory provisions, it is plain that under the Indian law, "credit" including "the character" of a witness, is a relevant factor to be taken into account by every Court administering justice. However such being the amplitude, of necessity, limitations may arise because of the issues that may be involved in a particular given controversy and further the questions being merely asked to insult or annoy a witness or the question is by itself indecent or scandalous. In such offensive only the Court is empowered to protect the witness by the manner indicated by Section 148, Section 150 or even putting an embargo under Section 151 or 152 of the Act. Till conditions of these provisions are not satisfied the matter is at large and witness must stand all the test before his word can be raised to pedestal of the proof.
22. I may clarify while explaining the proposition of law as above that in the present case, questioning the character of the witness is not the issue. However, I have thought fit to touch this issue having regard to the importance of the same. The issue in the present case is very simple whether the question which the defence counsel proposes to put to the complainant has any relevancy with the charge framed against the accused persons. The defence counsel may be having something in his mind and was reluctant to disclose the same in the fear that his defence would be disclosed which would cause prejudice to his client. However, as observed in para 15 that the defence counsel can even Page 11 of 15 Downloaded on : Sat Jan 15 20:06:53 IST 2022 R/SCR.A/8182/2018 ORDER DATED: 01/07/2021 undertake to show at a subsequent stage that the question was really relevant.
7. Learned Advocate, thus, submits that the proposition of law as laid down in the above judgment which relies upon various judgment of the Supreme Court is that in case there is any dispute with regard to the admissibility of any document brought in as evidence or any question raised to any witness then the dispute with regard to the question or document should be noted by the Court and the same should be decided at the end of trial. The underlying purpose being that the said procedure would benefit the trial court during evidence taking stage since time would not be wasted at that stage to decide the objections and further more in an appeal ore revision against the final judgment, the Appellate or Revisional Court could determine the correctness of the view regarding the objection without having remit the case back to the Trial Court.
8. In any case the learned Advocate has submitted relying upon the judgment of this Court (Coram : J.B. Pardiwala,J.) in Special Criminal Application No. 4561 of 2015 dated 22.09.2015, more particularly para 15 and 22 thereof that this Hon'ble Court in the said judgment holds, with regard to a question put by the defence counsel to the complainant , as to whether the same may have any relevancy to the charge framed against the accused persons, that the defense counsel may have had something which he may not be willing to disclose so as not to prejudice his client, however, it is open Page 12 of 15 Downloaded on : Sat Jan 15 20:06:53 IST 2022 R/SCR.A/8182/2018 ORDER DATED: 01/07/2021 to the defence to show at a subsequent stage that the question was relevant. Learned Advocate submits that while the law laid down by this Court is with regard to asking a question and whereas the same principles would govern the field in case of any evidence sought to be produced by the defence. In any case learned Advocate submits that the learned Trial Court ought not to have brushed aside the application for production of document without any reason.
9. This petition is strongly opposed by learned APP Ms. Maithili Mehta. Learned APP submits that this Court may not entertain this petition at all and more particularly considering that even in the application the applicant had not mentioned the purpose for placing the said document on record. Learned APP submits that the entire idea of the accused in the Sessions trial is try and ensure that the trial gets adjourned for one reason or other and the application which has been rejected by the learned Sessions Court is one more example of such tactics adopted by the accused therein. As such learned APP could not seriously dispute the proposition of law as set out by this Court in the decision dated 22.09.2015 in Special Criminal Application No. 4561 of 2015.
10. Considering the submissions made by learned Advocates for the parties and having perused the document on record including the judgment of this Court referred hereinabove, this Court is of the opinion that the learned Sessions court committed an error while rejecting the application Exh. 341 more particularly, without giving reasons for such rejection. As observed by this Court in the above referred judgment, more particularly relying upon the Page 13 of 15 Downloaded on : Sat Jan 15 20:06:53 IST 2022 R/SCR.A/8182/2018 ORDER DATED: 01/07/2021 decision of the Supreme Court in case of State through Special Cell, New Delhi Vs. Navjot Sandhu @ Afshan Guru and Ors. (2003(6)SCC 641, that when a question or a document is sought to be asked or sought to be placed in evidence the defence may not be required to submit with regard to relevancy of the document or question of that stage if the defence contends that submitting regarding relevancy may lead to disclosure of their defence, provided that the relevancy is explained at a later stage. Further more if there is an objection with regard to the admissibility of the document, and whereas if the relevancy is disputed, instead of deciding the dispute immediately, the Court should endeavour to note down the dispute and whereas the question may be permitted to be asked or the document may be permitted to be produced and whereas whether the dispute raised was relevant or not could be decided by the concerned Court, if required, at the end of the trial. Considering the said proposition of law laid down by this Court relying upon the decision of the Supreme Court, this Court is of the opinion that the present petition deserves consideration.
11. In view of the above, order dated 15.05.2018 upon Exh. 341 in Sessions Case No. 34 of 2014 is quashed and set aside. The learned Sessions Court shall take appropriate decision upon the application Exh 341 after considering the observations made hereinabove as well as the observations of this Court in Special Criminal Application No. 4561 of 2015 dated 22.09.2015 and pass appropriate order in accordance with law. Such order shall be passed by the learned Sessions Court without being influenced by this Court or the fact of the applicant having preferred this petition. In case the document Page 14 of 15 Downloaded on : Sat Jan 15 20:06:53 IST 2022 R/SCR.A/8182/2018 ORDER DATED: 01/07/2021 is permitted to be exhibited by the Sessions Court, it would be open for the applicant to move an appropriate application for recall of the said witness and whereas the Sessions Court shall pass appropriate orders in accordance with law.
12. The learned Sessions Court shall decide the application 341 as expeditiously as possible so as to ensure that in case of negative order the applicant gets the right to challenge the same before this Court before the trial is over.
13. With the above observations and directions the present application stands disposed of as allowed. Direct service is permitted.
(NIKHIL S. KARIEL,J) MARY VADAKKAN Page 15 of 15 Downloaded on : Sat Jan 15 20:06:53 IST 2022