THE HIGH COURT OF TRIPURA AGARTALA Crl. Rev. Pet. No.22/2017. 1. [ENTITY], S/O. Late Hasmat Ullah, 2. [ENTITY], S/O. Late Wahid Ullah, 3. [ENTITY], S/O. Late Abdul Gaffur, 4. [ENTITY], S/O. Late Hasmat Ullah, 5. [ENTITY], S/O Md. Arjan Ali, 6. [ENTITY], S/O Late Abdul Gaffur, 7. [ENTITY], S/O. Late Bahar Ullah, 8. [ENTITY], S/O. Late Hasmat Ullah, 9. [ENTITY], S/O. Late Hatim Ullah, 10. [ENTITY], S/O Late Hatim Ullah, 11. [ENTITY], S/O Late Hazi Sajid Ullah, 12. [ENTITY], S/O. Late Bahar Ullah, 13. [ENTITY], S/O Late Hasmat Ullah, 14. [ENTITY], S/O Chanur Ali, 15. [ENTITY], S/O Late Ayat Ullah, 16. [ENTITY], S/O Late Hatim Ullah, 17. [ENTITY], S/O Md. Arjan Ali, 18. [ENTITY], S/O. Md. [ENTITY]. All of Village - Depacherra, P.S Irani, Kailashahar, District - Unakuti, Tripura. Petitioners. -: Vrs. :- The [ENTITY]. Respondent.
BEFORE HON'BLE THE CHIEF JUSTICE Counsel for the petitioners : Mr. [ENTITY], Sr. Advocate, Mr. [ENTITY], Advocate, Mr. [ENTITY], Advocate.
Counsel for the respondent : Mr. [ENTITY], Addl. P. P. Date of hearing : 16-6-2017.
Date of Judgment & Order : 30-6-2017 JUDGMENT & ORDER
This criminal revision is directed against the order dated 11-4-2017 passed by the learned Additional Sessions Judge, Unakoti Judicial District, Kailasahar in [CASE NUMBER] rejecting the application of the petitioner U/[SECTION] for recalling the prosecution witnesses for further cross- examination ostensibly for the purpose of contradicting their statements recorded U/[SECTION], [ACT].
2. To appreciate the grievance of the petitioner, I will straightaway reproduce below the contents of Para1 of the application of the petitioner:
"1. That prosecution witnesses PW-4, PW-5, PW-6, PW-7, PW-10 and PW-15 were examined by the prosecution and they are cross-examine (sic) by the defence at the time of cross-examination, the defence with a view to contradict those witnesses with reference with (sic) their earlier statements recorded U/[SECTION] [ACT] put the question drawing the attention of the witnesses whether those statements were made to police at the time of recording their statements. Though the defence was allowed to put those question, in reply, they stated that they made those statements at the time of recording their statements by the police, but inadvertently attention of those witnesses will not be drawn (?) to the statements recorded U/[SECTION] [ACT] which the recommence (?) of the law U/[SECTION] of [ACT]."
(Underlined for emphasis) In my opinion, the petitioner has misconceived the procedure for contradicting a witness under [SECTION], [ACT]. Right from the time of [PRECEDENT] through [PRECEDENT] to Raj Kishore Jha v. State of Bihar and others, (2003) 11 SCC 519, the law has been firmly settled by the Apex Court that resort to [SECTION], [ACT] would be necessary only if the witness denies that he made the former statement. If the witness denies of having made such a statement, then it would be necessary to prove that he did, and if the former statement was reduced to writing, then [SECTION] requires that his attention must be drawn to those parts which are used for contradiction. To draw the attention of the witness, it is not enough to say whether a particular exhibit is his previous statement; the witness should be questioned about each separate fact point by point and passage by passage, which should be duly exhibited. But that position does not arise when the witness admits the former statement. In such a case, all that is necessary is to look to the former statement on which no further proof is necessary because of the admission that it was made.
3. Judging the decision of the trial court rejecting the application against the backdrop of the principles enunciated above, I do not find any jurisdictional error in rejecting the application of the petitioner. There is no question of recalling the prosecution witnesses already discharged for the purpose of resorting to [SECTION], [ACT] when the remaining witnesses such as PW-5, PW-6, PW-7, PW-10, PW-19, PW-20 admitted their former statements upon which recourse to [SECTION], [ACT] is sought for. As a matter of fact, where contradictions were sought to be made by the petitioners, the trial court apparently did not fail to do so. For example, in the cross-examination of PW-5, the following comes to surface:- "I did not state before the police that my son lost his consciousness. Attention of the witness is drawn towards the part of her 161 statement that her son became like unconscious to which she denied to have made such statement. The part of the 161 statement is marked Ext.A., subject to confirmation by IO." In most of the questions put before the prosecution witnesses sought to be recalled, the petitioners did not even care to specifically ask whether such and such statements were made before the police U/[SECTION] [ACT]. In my judgment, the petitioners cannot have any legitimate grievance against the manner in which the prosecution witnesses were examined in the trial court warranting their recall; to accede to such prayer will amount to an abuse of process of court.
4. There is, therefore, no merit in this revision petition, which is hereby dismissed. The learned Additional Sessions Judge, Unakoti District shall now proceed with the case and conclude the trial in accordance with law. Interim order stands vacated. All the petitioners/accused are directed to appear before the trial Court on 12-7-2017 at 10.30 A.M. for further proceedings of the trial without fail. Transmit the L.C. record forthwith.
5. Before parting, I must, however, remind the trial courts once again that it is quite possible that the lawyers engaged by the accused may not be knowing the art of contradicting the witnesses U/[SECTION], [ACT] with their previous statements made before the police U/[SECTION] [ACT]. Such inadequacy on the part of defence lawyer may sometimes even cause prejudice to the accused in genuine cases requiring such contradiction. In a situation of this nature, the trial judge has an important role to play to ensure that the accused receives fair trial. In this context, the observations made by the Apex Court in [PRECEDENT] on the active role to be played by them in a criminal trial need to be reiterated. This is what it said:
"15. The Courts have to take a participatory role in a trial. They are not expected to be tape recorders to record whatever is being stated by the witnesses. [SECTION] of the Code and [SECTION] of the [ACT] confer vast and wide powers on Presiding Officers of Court to elicit all necessary materials by playing an active role in the evidence collecting process. They have to monitor the proceedings in aid of justice in a manner that something, which is not relevant, is not unnecessarily brought into record. Even if the prosecutor is remiss in some ways, it can control the proceedings effectively so that ultimate objective i.e. truth is arrived at. This becomes more necessary where the Court has reasons to believe that the prosecuting agency or the prosecutor is not acting in the requisite manner. The Court cannot afford to be wishfully or pretend to be blissfully ignorant or oblivious to such serious pitfalls or dereliction of duty on the part of the prosecuting agency. The prosecutor who does not act fairly and acts more like a counsel for the defence is a liability to the fair judicial system, and Courts could not also play into the hands of such prosecuting agency showing indifference or adopting an attitude of total aloofness.
16. The power of the Court under [SECTION] of the [ACT] is in a way complementary to its power under [SECTION] of the Code. The section consists of two parts i.e (i) giving a discretion to the Court to examine the witness at any stage and (ii) the mandatory portion which compels the Court to examine a witness if his evidence appears to be essential to the just decision of the Court. Though the discretion given to the Court is very wide, the very width requires a corresponding caution. In [PRECEDENT] this Court has observed, while considering the scope and ambit of [SECTION], that the very usage of the word such as, 'any Court' 'at any stage', or 'any enquiry or trial or other proceedings' 'any person' and 'any such person' clearly spells out that the Section has expressed in the widest possible terms and do not limit the discretion of the Court in any way. However, as noted above, the very width requires a corresponding caution that the discretionary powers should be invoked as the exigencies of justice require and exercised judicially with circumspection and consistently with the provisions of the Code. The second part of the section does not allow any discretion but obligates and binds the Court to take necessary steps if the fresh evidence to be obtained is essential to the just decision of the case - 'essential', to an active and alert mind and not to one which is bent to abandon or abdicate. Object of the Section is to enable the Court to arrive at the truth irrespective of the fact that the prosecution or the defence has failed to produce some evidence, which is necessary for a just and proper disposal of the case. The power is exercised and the evidence is examined neither to help the prosecution nor the defence, if the Court feels that there is necessity to act in terms of [SECTION] but only to subserve the cause of justice and public interest. It is done with an object of getting the evidence in aid of a just decision and to uphold the truth."
The Registry will circulate this judgment to all criminal courts for strict compliance.
CHIEF JUSTICE [ENTITY]