[ENTITY] Applicant(s)V/S[ENTITY] Respondent(s) R/SCR.A/3082/2012 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION NO. 3082 of 2012 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE [ENTITY] Whether Reporters of Local Papers may be allowed to see the judgment ? No To be referred to the Reporter or not ? No Whether their Lordships wish to see the fair copy of the judgment ? No Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? No Whether it is to be circulated to the civil judge ? No [ENTITY] Petitioner(s) Versus [ENTITY] Respondent(s) Appearance:
MR [ENTITY], ADVOCATE for the Petitioner(s) No. 1 MS [ENTITY], ADDITIONAL PUBLIC PROSECUTOR for the Respondent(s) No. MR [ENTITY], ADVOCATE for the Original Complainant CORAM:
HONOURABLE MR.JUSTICE [ENTITY] Date : 08/02/2013 CAV JUDGMENT
1. By way of this petition under [SECTION] and [SECTION] of the [ACT] as well as [SECTION] of the [ACT], the petitioner has challenged the order dated 10.10.2012 passed by the Additional Chief Judicial Magistrate in [CASE NUMBER], whereby the prosecution witness [ENTITY] has been declared to be hostile witness at the request of Assistant Public Prosecutor.
2. Facts which are relevant for the purpose of this petition are enumerated as under:-
2.1 The petitioner is an original accused, wherein the charge is framed for the offence punishable under [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION] and [SECTION] of the [ACT] and the same is registered as [CASE NUMBER] which is pending before the Court of Additional Chief Judicial Magistrate and 3rd Additional Senior Civil Judge, Gandhinagar.
2.2 It appears from the record of the petition that one [ENTITY] (hereinafter referred to as the witness for the sake of brevity) was examined as prosecution witness on 9.10.2012. After the examination-in-chief was over, the learned advocate for the petitioner cross-examined the said witness. After the cross-examination was over, the Assistant Public Prosecutor requested the Court orally to declare the said witness as hostile to the prosecution. It further appears from the record that the same was objected to by the learned advocate appearing for the defence and after considering the submissions made by the Assistant Public Prosecutor as well as the defence lawyers, by the impugned order dated 10.10.2012, allowed the request made by the Assistant Public Prosecutor, whereby the witness was declared to be hostile witness. It further appears that the petitioner filed an application to differ the cross-examination with a view to challenge the impugned order before higher forum and the present petition is filed challenging the impugned order, as aforesaid.
3. This Court (Coram: [ENTITY], J.) vide order dated 3.12.2012 has been pleased to admit the matter and pass the following order:-
Heard Mr. [ENTITY], learned advocate for the applicant, and Mr. [ENTITY], learned APP, for the respondent State.
1.1 Mr. [ENTITY], learned advocate, is also heard on behalf of the complainant.
Though any objection by learned APP as regards maintainability of the petition under [SECTION] of the [ACT] on the ground that the petitioner should have preferred revision application against the impugned order is not raised, the Court inquired with Mr. [ENTITY], learned advocate for the petitioner, as to why revision application is not preferred. Mr. [ENTITY], learned advocate for the petitioner, submitted that instead of preferring revision application, the petitioner has preferred this petition because the petitioner believed that having regard to the nature of the impugned order and the petition, the order could have been considered as interlocutory order and the Court may not entertain revision application.
In view of the fact that the hearing of the matter before the learned trial Court is in progress, the Court is not entering into the said issue so that further time may not be consumed, instead of asking the petitioner to prefer revision application and only as an exceptional case, having regard to the fact that the hearing of the matter is in progress before the learned trial Court, the petitioner is not asked to file revision application, instead of petition under [SECTION] of the [ACT] and he is allowed to take alternative remedy of petition under [SECTION] of the [ACT].
Mr. [ENTITY], learned advocate for the petitioner, has relied on the decisions in case between [ENTITY] v. State of Orissa [1997 CRI.L.J. 173(1)], [PRECEDENT], [ENTITY] v. State of Gujarat [1993 (1) GLH 255], [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT] and [PRECEDENT].
Mr. [ENTITY], learned advocate for the complainant, though not necessary party in present proceedings, has been heard. He has referred to the decision in case of State of Gujarat v. [ENTITY] [2010(1) GLH 779] and the decision in case of [ENTITY] v. State of Gujarat [1993(1) GLH 255].
5.1 The Court has also taken into consideration the decision in case of [PRECEDENT].
6. Having regard to the facts of the case and the decisions relied on by the learned advocate for the petitioner, it appears that it is necessary to examine the matter in further detail.
Therefore, below mentioned order is passed.
Rule.
In view of the fact that the hearing before the learned trial Court is in progress and the Hon'ble Apex Court has passed directions to complete the trial expeditiously, and preferably within 6 months, there is need for deciding the matter on urgent basis hence, the interim relief as prayed for i.e. to stay the proceedings and/or to stay the impugned order is not granted but, Rule is made returnable on 5.12.2012. Mr. [ENTITY], learned APP waives service of Rule for the respondent State.
7. On 30.11.2012, the Court was informed that though the hearing of the matter was in progress before the trial Court, the learned trial Court had proceeded with the hearing of the matter and the concerned witness was subjected to cross-examination. Therefore, the Court had observed in the order dated 30.11.2012 that:-
Learned counsel for petitioner has submitted at this stage that though hearing of this application is in progress the witness is being subject to cross-examination.
In that view of the matter, it is clarified that while proceedings are not stayed (and they may go on), until the next date of hearing, the witnesses may not be subject to cross-examination, in pursuance of impugned order.
While clarifying that the Court is not at all inclined to stay the proceedings before the learned trial Court, the directions contained in last paragraphs of the order dated 30.11.2012, is directed to continue until the next date of hearing, i.e. 5.12.2012.
It is once again clarified that the proceedings/trial is not stayed.
4. Heard Mr. [ENTITY], learned advocate for the petitioner and Ms. [ENTITY], learned APP for the State and as observed by this Court in the order dated 27.11.2012 passed in [CASE NUMBER], Mr. [ENTITY], learned advocate was heard on behalf of the original complainant.
5. Mr. [ENTITY], learned advocate for the petitioner has taken this Court through the factual matrix arising out of this petition. It is inter-alia contended that since the witness has not stated anything contrary to his statement during the course of examination-in-chief, he was not sought to be declared hostile by the Assistant Public Prosecutor. It is further contended that during the course of cross-examination, the witness has not washed of examination-in-chief, nor he has stated anything contrary to his examination-in-chief and under such circumstances, no witness could have been sought to be declared as hostile witness by the Assistant Public Prosecutor at the stage of cross-examination. It is submitted that only on sole ground that something contrary has been stated by the witness in the cross-examination by the accused, the witness be declared hostile. However, such request is not supported by the facts of this case. It is contended that such contention raised by the Assistant Public Prosecutor is factually incorrect and that the Assistant Public Prosecutor did not even give any written application. It is therefore submitted that on bare reading of the cross-examination, it reveals that the whole basis of the request made by the Assistant Public Prosecutor has no legs to stand. It is further contended that no finding is arrived at by the learned Magistrate to the effect that the witness has stated anything contrary to his examination-in-chief and therefore, there is no justification to declare the witness hostile. It is contended that the learned Magistrate has also considered that the re-examination may be required. It is further contended that in fact what has been weighed with the learned Magistrate is that the witness has stated more than what he has stated in the examination-in-chief and even though the learned advocate agrees to that proposition, has ultimately declared the witness hostile. It is submitted that version of the witness has not washed of his chief and such circumstances are absent in the instant case and as such, there is no finding given by the learned Magistrate to that effect. It is therefore contended that the learned Magistrate has misplaced the reliance on the judgment of this Court in the case of [ENTITY] Vs. State of Gujarat, reported in 1993 (1) GLH 255. It is also contended that the purpose of cross-examination is that the accused can plead his defence. It is further contended that the accused can elicit some material favourable to him during the course and thus, cross-examination is a valuable right of the accused in the adversary system and only if something is elicited which is favourable to the accused, the witness cannot be declared hostile ipso-facto. It is contended that if during the cross-examination, if a new defence is culled out as it has happened in the instant case, the witness cannot be declared hostile and only because something new has come out in the cross-examination, the witness cannot be declared as hostile. It is further contended that in such a case it is for the Court whether to believe or discard the evidence of such a witness. It is therefore contended that instead of permitting re-examination of the witness, the learned Magistrate has erroneously declared the witness as hostile. It is also contended that the learned Magistrate has on irrelevant consideration kept aside judgments cited by the petitioner and therefore, the impugned order is erroneous and the same deserves to be quashed and set aside as prayed for. It is submitted that in fact there are no reasons or findings to the effect that on which ground and why the witness is required to be declared as hostile. It is also contended that the provisions of the [ACT] and more particularly [SECTION] of the [ACT] is to be exercised judiciously and on justiciable ground. It is contended that while cross-examining the witness, the accused cannot be confined to whatever the witness has stated in his examination-in-chief and cross-examination is permitted on various issues arising. Mr. [ENTITY], in order to buttress his arguments, has relied upon the following judgments:-
[a] [ENTITY] Vs. State of Orissa, reported in AIR 1977 SC 170.
[b] [PRECEDENT].
[c] [PRECEDENT].
[d] [ENTITY] Vs. State of Gujarat, reported in 1993 (1) GLH 255.
[e] [ENTITY] Vs. State of Gujarat & Anr., reported in 2012(3) GLH 455.
[f] [ENTITY] Vs. State of Gujarat, reported in AIR 1964 SC 1563.
[g] [PRECEDENT].
[h] State of Gujarat Vs. [ENTITY], reported in 2010 (1) GLH
Mr. [ENTITY], therefore, contended that the impugned order is bad and illegal and the petition deserves to be allowed.
6. Per contra, Ms. [ENTITY], learned APP for the State has supported the impugned order. The learned APP contended that the conduct of the witness during the cross-examination is such that it has washed out his own examination-in-chief and in facts of the present case, giving of date amounts to washing out the examination-in-chief. It is also contended that the cross-examination of a hostile witness is different from re-examination and as far as the scope is concerned, the cross-examination gives wider scope and hence, cross-examination and re-examination cannot be compared. It is further contended that the very purpose of cross-examination is to impeach the credit worthiness of the witness. It is also contended that in the instant case, during the cross-examination at the instance of the accused, the witness has given certain dates which have completely washed out his examination-in-chief. It is however contended that after passing of the impugned order, as per the facts reveal on record, the witness himself endeavoured to give an application, whereby he has prayed not to declare him hostile and such an application has been declined by the learned Magistrate which is not challenged by the said witness. It is therefore contended that such a conduct on the part of the witness speaks volumes about his credit worthiness. It is therefore submitted that the petition is meritless and the same deserves to be dismissed.
7. Mr. [ENTITY], learned advocate for the original complainant reiterated the submissions made by Ms. [ENTITY], learned APP for the State.
8. No other or further contentions have been raised by either of the learned advocates appearing for the respective parties. Perused the police statement, examination-in-chief, cross-examination as well as the paper book submitted by respondent No.2.
9. In the instant case, it appears from the deposition of the prosecution witness at Annexure-A to the application that in examination-in-chief, the witness has deposed as per the statement made before the Police during investigation. On reading of the cross-examination, the witness has answered certain further questions put-up by the defence. On perusal of the impugned order, it appears that the Assistant Public Prosecutor made an oral request to declare the witness as hostile on the sole ground that the witness has stated certain things which are contrary to what he has deposed in the examination-in-chief and the Assistant Public Prosecutor has relied upon the ratio laid down by this Court in the case of [ENTITY] (supra).
10. It further appears that as noted above, the contention raised by the petitioner that the witness has not stated anything contrary to what has been stated in the examination-in-chief, but has stated further facts on his asking by the defence. It is also found in the impugned order that the Magistrate has observed that under the provisions of [SECTION] of the [ACT], if re-examination shall be directed to the explanation of the matters referred to in cross-examination which is not stated by the said witness in his police statement and has also observed that under [SECTION] of the [ACT], the witness can be declared hostile at the discretion of the Court having considered the ratio of the judgments cited before him, the Magistrate has declared the said witness as hostile.
11. Mr. [ENTITY], learned advocate for the petitioner has relied upon the case of [ENTITY] Vs. State of Orissa, reported in AIR 1977 SC 170, wherein the Hon'ble Apex Court observed as under:-
10. Before proceeding further we might like to state the law on the subject at this stage. [SECTION] of the [ACT] is the only provision under which a party calling its own witnesses may claim permission of the Court to cross-examine them. The section runs thus:
"The Court may, in its discretion permit the person who calls a witness to put any question to him which might be put in cross-examination by the adverse party."
The section confers a judicial discretion on the Court to permit cross-examination and does not contain any conditions or principles which may govern the exercise of such discretion. It is, however well settled that the discretion must be judiciously and properly exercised in the interests of justice. The law on the subject is well settled that a party will not normally be allowed to cross-examine its own witness and declare the same hostile, unless the Court is satisfied that the statement of the witness exhibits an element of hostility or that he has resiled from a material statement which he made before an earlier authority or where the Court is satisfied that the witness is not speaking the truth and it may be necessary to cross-examine him to get out the truth. One of the glaring instances in which this Court sustained the order of the Court in allowing cross-examination was where the witness resiles from a very material statement regarding the manner in which the accused committed the offence. In [PRECEDENT] at pp. 368, 369, 370 = (AIR 1964 SC 1563 at p. 1569) this Court made the following observations :
"[SECTION] does not in terms, or by necessary implication confine the exercise of the power by the Court before the examination-in-chief is concluded or to any particular stage of the examination of the witness. It is wide in scope and the discretion is entirely left to the Court to exercise the power when the circumstances demand. To confine this power to the stage of examination-in-chief is to make it ineffective in practice. A clever witness in his examination-in-chief faithfully conforms to what he stated earlier to the police or in the committing court, but in the cross-examination introduces statements in a subtle way contradicting in effect what he stated in the examination-in-chief. If his design is obvious, we do not see why the Court cannot, during the course of his cross-examination, permit the person calling him as a witness to put questions to him which might be put in cross-examination by the adverse party."
"Broadly stated, the position in the present case is that the witnesses in their statements before the police attributed a clear intention to the accused to commit murder but before the Court they stated that the accused was insane and, therefore, he committed the murder."
A perusal of the above observations will clearly indicate that the permission to cross-examine was upheld by this Court because the witnesses had categorically stated before the police that the accused had committed the murder but resiled from that statement and made out a new case in evidence before the Court that the accused was insane. Thus it is clear that before a witness can be declared hostile and the party examining the witness is allowed to cross-examine him, there must be some material to show that the witness is not speaking the truth or has exhibited an element of hostility to the party for whom he is deposing. Merely because a witness in an unguarded moment speaks the truth which may not suit the prosecution or which may be favourable to the accused, the discretion to allow the party concerned to cross-examine its own witnesses cannot be allowed. In other words a witness should be regarded as adverse and liable to be cross-examined by the party calling him only when the Court is satisfied that the witness bears hostile animus against the party for whom he is deposing or that he does not appear to be willing to tell the truth. In order to ascertain the intention of the witness or his conduct, the Judge concerned may look into the statements made by the witness before the Investigating Officer or the previous authorities to find out as to whether or not there is any indication of the witness making a statement inconsistent on a most material point with the one which he gave before the previous authorities. The Court must, however, distinguish between a statement made by the witness by way of an unfriendly act and one which lets out the truth without any hostile intention.
It may be rather difficult to lay down a rule of universal application as to when and in what circumstances the Court will be entitled to exercise its discretion under [SECTION] of the [ACT] and the matter will largely depend on the facts and circumstances of each case and on the satisfaction of the Court on the basis of those circumstances. Broadly, however, this much is clear that the contingency of cross-examining the witness by the party calling him is an extraordinary phenomenon and permission should be given only in special cases. It seems to us that before a Court exercises discretion in declaring a witness hostile, there must be some material to show that the witness has gone back on his earlier statement or is not speaking the truth or has changed sides an transferred his loyalty to the adversary. Furthermore, it is not merely on the basis of a small or insignificant omission that the witness may have made before the earlier authorities that the party calling the witness can ask the Court to exercise its discretion. The Court, before permitting the party calling the witness to cross-examine him, must scan and weight the circumstances properly and should not exercise its discretion in a casual or routine manner.
It is also clearly well settled that the mere fact that a witness is declared hostile by the party calling him and allowed to be cross-examined does not make him as unreliable witness so as to exclude his evidence from consideration altogether. In [PRECEDENT] at p. 203), [ENTITY], J. speaking for this Court observed as follows:
"The prosecution could have even avoided requesting for permission to cross-examine the witness under [SECTION] of the [ACT]. But the fact that the Court gave permission to the prosecutor to cross-examine his own witness, thus characterising him as, what is described as a hostile witness, does not completely efface his evidence. The evidence remains admissible in the trial and there is no legal bar to base a conviction upon his testimony if corroborated by other reliable evidence."
12. In the case of [ENTITY] (supra), this Court observed as under:-
13. The learned A.P.P. making his last ditch feeble attempt to support the evidence of [ENTITY] (P.W. 1, Ex.10) submitted that the same was duly corroborated by the evidence of panch witness [ENTITY] (P.W.13,Ex.44), who has fully supported the prosecution case regarding recovery of the blood-stained knife from the scene of offence. Controverting this proposition of the learned A.P.P. Mr. [ENTITY], the learned Advocate for the accused has invited our attention to the evidence of another panch, viz. [ENTITY] (P.W.12, Ex.43), who in his examination-in-chief, though broadly supported the prosecution case, in cross-examination backed out from the same, perhaps conveniently walking into the trap of the defence by admitting that - "When we were going to the Wadi, at that time, we were called as Panchas and the police said that these much articles have been seized, whereupon we gave signatures. Muddamal knife, etc. were already with the police when we were called as Panchas." Now this part of the evidence in cross-examination completely demolished the earlier version regarding the recovery of blood-stained knife used in commission of the offence. What is surprising is the fact that though this Panch witness [ENTITY] (P.W.12, Ex.42) in his cross-examination has not supported the prosecution case, still for the reasons best known to the learned Public Prosecutor, he has not been declared hostile. It appears that the learned P.P. in-charge of the matter was perhaps either blissfully unaware of the real position of law as to when the witness can be declared hostile or was labouring under some misconception of law that only and only if a witness gives go-bye to the prosecution story in examination-in-chief, that he can be declared hostile, whatever may be the case, but the fact remains that as the panch [ENTITY] (P.W.12, Ex.43) has given evidence on behalf of prosecution on oath and that he is not declared as hostile, his evidence remains as it is. Under the circumstances, whatever has been stated by him cannot be erased and discarded at this stage. Thus, when two panch witnesses on oath gives out two inconsistent versions without the first panch declared hostile and their evidence consists of words against words, one supporting the accused and other the prosecution, obviously the version in favour of the accused has ordinarily got to be accepted. Whenever any prosecution witness, though in examination-in-chief, shapes pretty fairly, subsequently by change in his cross-examination gives evidence in a manner which has the effect of washing out the earlier evidence in the examination-in-chief, then he deserves to be declared hostile. If that is not done, then depending upon the facts and circumstances of that particular case, prosecution may suffer irreparable consequences. Apart, since in the facts and circumstances of the case, the evidence of the solitary eye-witness itself is found to be wholly unreliable, so to say dead evidence, no amount of corroboration can lend any support to it to revive any credibility in him. Under the circumstances it is not necessary to consider the effect of the evidence of panch witnesses.
13. Similarly, in the case of [ENTITY] (supra), it has been held thus:-
15. A clever witness in his examination-in-chief faithfully confirms to what he stated earlier to the police, but in the cross-examination introduces statement in a subtle way contradicting in-effect what he stated in the examination-in-chief. This is at times a very common feature and nothing is unusual about the same. However, under such circumstances there is a duty cast upon the Public Prosecutor who is incharge of the trial and also of the Court concerned to a certain extent. [SECTION] gives only the stages in the examination of a witness, viz., examination-in-chief, cross-examination and re-examination. This is a routine sequence in the examination of a witness. In the present case we are of the view that the Public Prosecutor who conducted prosecution has not discharged his responsibility as he avoided putting any question to PW.2 and PW.7 when law permits him for re-examination under the circumstances narrated above. The very purpose of re-examination is to explain matters which have been brought down in cross-examination. [SECTION] of the [ACT] outlines the amplitude of re-examination. It reads thus :
Order of examinations.-Witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined. The examination need not be confined to the facts to which the witness testified on his examination-in-chief.
Direction of re-examination.- The re-examination shall be directed to the explanation of matters referred to in cross-examination; and, if new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine upon that matter.
16. As observed by the Supreme Court in the case of [ENTITY] alias Rameshwar v/s. State of M.P., reported in (1999)8 SCC 649 that there is an erroneous impression that re-examination should be confined to clarification of ambiguities which have been brought down in cross-examination. Supreme Court proceeded to observe that no doubt, ambiguities can be resolved through re-examination. But that is not the only function of the re-examiner. If the party who called the witness feels that explanation is required for any matter referred to in cross-examination he has the liberty to put any question in re-examination to get the explanation. The Public Prosecutor is expected to formulate his questions for that purpose. Explanation may be required either when the ambiguity remains regarding any answer elicited during cross-examination or even otherwise. If the Public Prosecutor feels that certain answers require more elucidation from the witness, he has the freedom and the right to put such questions as he deems necessary for that purpose, subject of course to the control of the court in accordance with the other provisions. Supreme Court in [ENTITY] (supra) has also observed that the court cannot direct the Public Prosecutor to confine his questions to ambiguities alone which arose in cross-examination.
17. Even if the Public Prosecutor feels that new matters should be elicited from the witness, he can do so, in which case the only requirement is that he must secure permission of the court. If the court thinks that such new matters are necessary for proving any material fact, courts must be liberal in granting permission to put necessary questions. At this stage it would be profitable to quote paragraphs 19 and 20 of [ENTITY] (supra).
19. A Public Prosecutor who is attentive during cross-examination cannot but be sensitive to discern which answer in cross-examination requires explanation. An efficient Public Prosecutor would gather up such answers falling from the mouth of a witness during cross-examination and formulate necessary questions to be put in re-examination. There is no warrant that re-examination should be limited to one or two questions. If the exigency requires any number of questions can be asked in re-examination.
20. But in this case the Additional Public Prosecutor in the trial Court seemed oblivious of such a right. It is rather amazing that he did not avail himself of that right in respect of a single witness. The defence counsel would have had a free day as he was left totally undisturbed by the Public Prosecutor.
18. We are of the view that after having realized that both the witnesses PW.2 and PW.7 have very cleverly introduced statements in the cross-examination practically contradicting in-effect what is stated in the examination-in-chief, the Public Prosecutor ought to have re-examined both the witnesses on material aspects. Such omission on the part of the Public Prosecutor may lead to a very serious miscarriage of justice. No crime could be allowed to go unpunished. To a certain extent we also hold the trial Court responsible. It is a settled law that it is the duty of a Presiding Judge to explore every avenue open to him in order to discover the truth and to advance the cause of justice. The trial Judge is invested by [SECTION] of the [ACT] with the right to put questions to witnesses. At this stage it would also be profitable to quote the following observations made by the Supreme Court in the case of [PRECEDENT].
2. The adversary system of trial being what it is, there is an unfortunate tendency for a judge presiding over a trial to assume the role of a referee or an umpire and to allow the trial to develop into a contest between the prosecution and the defence with the inevitable distortions flowing from combative and competitive elements entering the trial procedure. 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. He must become a participant in the trial by evincing intelligent active interest by putting questions to witnesses in order to ascertain the truth. As one of us had occasion to say in the past:
"Every Criminal trial is a voyage of discovery in which truth is the quest. It is the duty of a presiding Judge to explore every avenue open to him in order to discover the truth and to advance the cause of justice. For that purpose he is expressly invested by [SECTION] of the [ACT] with the right to put questions to witnesses. Indeed the right to put given to a Judge is so wide that he may 'ask any question he pleases, in any form, at any time, of any witness, or of the parties about any fact, relevant or irrelevant. [SECTION] of the [ACT] enables the Court to send for the police-diaries in a case and use them to aid it in the trial. The record of the proceeding of the perused by the Sections Judge to further aid him in the trial". (Sessions Judge, [PRECEDENT]).
3. With such wide powers the Court must actively participate in the trial to elicit the truth and to protect the week and the innocent. It must, of course, not assume the role of a prosecutor in putting questions. The functions of the counsel, particularly those of the Public Prosecutor, are not to be usurped by the judge, by descending into the arena, as it were. Any questions put by the judge must be so as not to frighten,coerce, confuse or intimidate the witnesses. The danger inherent in a judge adopting a much too stern an attitude towards witnesses has been explained by Lord Justice [ENTITY] :
"People accustomed to the procedure of the Court are likely to be over-awed or frightened, or confused or distressed when under the ordeal of prolonged questioning from the presiding judge. Moreover, when the questioning takes on a sarcastic or ironic tone as it is apt to do, or when it takes on a hostile note as is sometimes almost inevitable, the danger is not only that witnesses will be unable to present the evidence as they may wish, but the parties may begin to think, quite wrongly it may be, that the judge is not holding the scales of justice quite eventually". Extracted by Lord [ENTITY] in [PRECEDENT]. 1957) 2 All ER 155).
In [PRECEDENT] Lord Justice [ENTITY] observed :
"The Judge's part in all this is to hearken to the evidence, only himself asking questions of witnesses when it is necessary to clear up any point that has been overlooked or left obscure; to see that the advocates behave themselves seemly and keep to the rules laid down by law; to exclude irrelevancies and discourage repetition; to make sure by wise intervention that he follows the points that the advocates are making and can assess their worth; and at the end to make up his mind where the truth lies. If he goes beyond this, he drops the mantle of the Judge and assumes the role of an advocate; and the change does not become him well".
We may go further than Lord [ENTITY] and say that it is the duty of a judge to discover the truth and for that purpose he may "ask any questions, in any form, at any time, of any witness or of the parties, about any fact, relevant or irrelevant" ([SECTION], [ACT]). But this he must do, without unduly trespassing upon the functions of the public prosecutor and the defence counsel, without any hint of partisanship and without appearing to frighten or bully witnesses. He must take the prosecution and the defence with him. The Court the prosecution and the defence must work as a team whose goal is justice, a team whose captain is the judge. The judge, 'like the conductor of a choir, must, by force of personality, induce his team to work in harmony; subdue the raucous encourage the timid, conspire with the young, flatter the old.
14. Similarly, the case of [ENTITY] (supra) was also considered by the Hon'ble Apex Court in the case of [ENTITY] (supra), as observed above.
15. In the case of [ENTITY] (supra), this Court observed thus:-
10. Mr. [ENTITY], learned Additional Public Prosecutor submitted that the respondent who is a prosecution witness had resiled from the statement made before the police under [SECTION] of the Code during the course of investigation, and as such, he was required to be declared hostile to the prosecution case. It was further submitted that the production of a written application by the respondent praying that he should not be declared hostile was a clever way of resiling from his earlier statement and avoiding any action that may be taken against him by the Bank for being declared hostile. It was pointed out that the witness came all prepared along with the application Exh.20 along with documents in support thereof. It was submitted that the documents produced by the respondent in support of his case appear to be concocted documents which have been subsequently created. Attention was invited to the Yadi dated 8.11.07 which had been sent to the Manager of the Bank informing him to come immediately to the Manavadar Police Station with the equipment for examining the genuineness of currency notes as on the basis of confidential information some individuals were carrying on suspicious activities and keeping in their possession counterfeit currency notes and were distributing them. It was submitted that if at all the endorsement made on the yadi as regards the time of receipt of the same is true and correct; on the first available opportunity the witness has not raised any objection. Attention was invited to the report dated 8.11.07 addressed by the respondent to the Manager on the reverse side of the Yadi, to submit that there was no occasion for the respondent to make such a report to the Manager, and more particularly to clarify in the said report that except for verifying the genuineness of the currency notes, he had not taken part in any other proceeding undertaken by the police. It was urged that the said report appears to have been prepared subsequently. Referring to the letter dated 16.11.07, it was pointed out that the same appears to be in the hand-writing of the respondent and has only been signed by Manager. It was further pointed out that in the said letter there is no reference to the yadi and as to when it was received, as endorsed on the yadi. It was further submitted that when the statement of the witness was recorded on 19.11.07, he had not stated anything as regards the yadi, the endorsement made thereon or even his case.
12. Next it was submitted that the presence of the respondent-witness with typed application shows his preparation even before entering the witness box, coupled with the fact that the time of receipt of yadi and going to the Police Station is nothing but a subsequent creation which is apparent from his own notings and letter dated 16.11.07. It was further submitted that the date on which the respondent read the newspaper has not been mentioned in the application and neither has he mentioned as to when he had obtained a copy of the FIR, which assumes significance because newspaper report shows that he was present through out. It was urged that the ground that the respondent came to know about it only after he obtained a copy of the FIR, is not genuine. In conclusion, it was submitted that the respondent-prosecution witness having resiled from his previous statement made during the course of investigation was required to be declared hostile and the impugned order declining the request of the learned Additional Public Prosecutor deserves to be quashed and set aside and the prosecution should be permitted to put questions to the respondent which can be put in cross-examination by the adverse party.
21. In [ENTITY] v. State of Orissa, (1976) 4 SCC 233, the Supreme Court held thus:
Before proceeding further we might like to state the law on the subject at this stage. [SECTION] of the [ACT] is the only provision under which a party calling its own witnesses may claim permission of the court to cross-examine them. The section runs thus:
The Court may, in its discretion permit the person who calls a witness to put any question to him which might be put in cross-examination by the adverse party.
The section confers a judicial discretion on the court to permit cross-examination and does not contain any conditions or principles which may govern the exercise of such discretion. It is, however, well-settled that the discretion must be judiciously and properly exercised in the interests of justice. The law on the subject is well-settled that a party will not normally be allowed to cross-examine its own witness and declare the same hostile, unless the court is satisfied that the statement of the witness exhibits an element of hostility or that he has resiled from a material statement which he made before an earlier authority or where the court is satisfied that the witness is not speaking the truth and it may be necessary to cross-examine him to get out the truth. One of the glaring instances, in which this Court sustained the order of the court in allowing cross-examination was where the witness resiles from a very material statement regarding the manner in which the accused committed the offence. In [PRECEDENT] this Court made the following observations:
[SECTION] does not in terms, or by necessary implication confine the exercise of the power by the court before the examination-in-chief is concluded or to any particular stage of the examination of the witness. It is wide in scope and the discretion is entirely left to the court to exercise the power when the circumstances demand. To confine this power to the stage of examination-in-chief is to make it ineffective in practice. A clever witness in his examination-in-chief faithfully conforms to what he stated earlier to the police or in the committing Court, but in the cross-examination introduces statements in a subtle way contradicting in effect what he stated in the examination-in-chief. If his design is obvious, we do not see why the court cannot, during the course of his cross-examination, permit the person calling him as a witness to put questions to him which might be put in cross-examination by the adverse party.
Broadly stated, the position in the present case is that the witnesses in their statements before the police attributed a clear intention to the accused to commit murder, but before the court they stated that the accused was insane and, therefore, he committed the murder.
A perusal of the above observations will clearly indicate that the permission to cross-examine was upheld by this Court because the witnesses had categorically stated before the police that the accused had committed the murder but resiled from that statement and made out a new case in evidence before the court that the accused was insane. Thus it is clear that before a witness can be declared hostile and the party examining the witness is allowed to cross-examine him, there must be some material to show that the witness is not speaking the truth or has exhibited an element of hostility to the party for whom he is deposing. Merely because a witness in an unguarded moment speaks the truth which may not suit the prosecution or which may be favourable to the accused, the discretion to allow the party concerned to cross-examine its own witnesses cannot be allowed. In other words a witness should be regarded as adverse and liable to be cross-examined by the party calling him only when the court is satisfied that the witness bears hostile animus against the party for whom he is deposing or that he does not appear to be willing to tell the truth. In order to ascertain the intention of the witness or his conduct, the Judge concerned may look into the statements made by the witness before the Investigating Officer or the previous authorities to find out as to whether or not there is any indication of the witness making a statement inconsistent on a most material point with the one which he gave before the previous authorities. The court must, however, distinguish between a statement made by the witness by way of an unfriendly act and one which lets out the truth without any hostile intention.
11. It may be rather difficult to lay down a rule of universal application as to when and in what circumstances the court will be entitled to exercise its discretion under [SECTION] of the [ACT] and the matter will largely depend on the facts and circumstances of each case and on the satisfaction of the court on the basis of those circumstances. Broadly, however, this much is clear that the contingency of cross-examining the witness by the party calling him is an extraordinary phenomenon and permission should be given only in special cases. It seems to us that before a court exercises discretion in declaring a witness hostile, there must be some material to show that the witness has gone back on his earlier statement or is not speaking the truth or has exhibited an element of hostility or has changed sides and transferred his loyalty to the adversary. Furthermore, it is not merely on the basis of a small or insignificant omission that the witness may have made before the earlier authorities that the party calling the witness can ask the court to exercise its discretion. The court, before permitting the party calling the witness to cross-examine him, must scan and weigh the circumstances properly and should not exercise its discretion in a casual or routine manner.
22. In [PRECEDENT] (supra), the Supreme Court held thus:
xxxxxx The discretion conferred by [SECTION] of the court is unqualified and untrammelled, and is apart from any question of hostility . It is to be liberally exercised whenever the court from the witnesses' demeanour, temper, attitude, bearing, or tenor and tendency of his answers, or from a perusal of his previous inconsistent statement, or otherwise, thinks that the grant of such permission is expedient to extract the truth and to do justice. The grant of permission does not amount to an adjudication by the court as to the veracity of the witness. Therefore, in the order granting such permission, it is preferable to avoid the use of such expressions, such as declared hostile , declared unfavourable , the significance of which is still not free from the historical cobwebs which, in their wake bring a misleading legacy of confusion, and conflict that had so long vexed the English Courts.
42. The fallacy underlying this view stems from the assumption that the only purpose of cross-examination of a witness is to discredit him; it ignores the hard truth that another equally important object of cross-examination is to elicit admissions of facts which would help build the case of the cross-examiner. When a party with the leave of the court, confronts his witness with his previous inconsistent statement, he does so in the hope that the witness might revert to what he had stated previously. If the departure from the prior statement is not deliberate but is due to faulty memory or a like cause, there is every possibility of the witness veering round to his former statement. Thus, showing faultiness of the memory in the case of such a witness would be another object of cross-examining and contradicting him by a party calling the witness. In short, the rule prohibiting a party to put questions in the manner of cross-examination or in a leading form to his own witness is relaxed not because the witness has already forfeited all right to credit but because from his antipathetic attitude or otherwise, the court feels that for doing justice, his evidence will be more fully given, the truth more effectively extricated and his credit more adequately tested by questions put in a more pointed, penetrating and searching way.
16. It would be advantageous to refer to the judgment of Division Bench of this Court in the case of [PRECEDENT]. passed in [CASE NUMBER] dated 13.8.2012, wherein considering the ratio laid down by the Hon'ble Supreme Court in the case of [ENTITY] (supra), this Court observed thus:-
17. As pointed out by the Supreme Court in the case of [ENTITY] v. State of Gujarat, reported in AIR 1964 SC 1563, the provision contained in [SECTION] of the [ACT] confers a discretionary power on the court to permit a person who calls a witness to put any question to him which can be put in the cross-examination by the adverse party. According to the Supreme Court, [SECTION] does not in terms, or by necessary implication, confine the exercise of power of the Court before examination-in-chief is concluded or at any particular stage of examination of the witness. It is, according to Supreme Court, wide in scope and the discretion is entirely left to the court to exercise the power when the circumstances demand. The Supreme Court further pointed out that to confine such power to the stage of examination-in-chief is to make it ineffective in practice. A clever witness, in his examination-in-chief faithfully conforms to what he stated earlier to the police or in the committing court, but in the cross-examination, introduces statements in a subtle way contradicting in effect what he stated in the examination-in-chief.
If this design is obvious, according to the Supreme Court, the court, during his cross-examination or re-examination can permit the person calling him as witness to put question to him which might be put in cross-examination by the adverse party. In that case before the Supreme Court, some of the witnesses faithfully repeated that they had stated before the police in examination-in-chief but in cross-examination they came out with the story of insanity of the accused. The court, at the request of the advocate of the prosecution permitted him to re-examine the said witness. But after such re-examination, according to the Supreme Court, the accused must be given opportunity to cross-examine the witness relating to the statement made in re-examination.
17. On perusal of the impugned order, as provided under [SECTION] of the [ACT], the Court has power to order re-examination of the witness, as during cross-examination, certain new facts have come on record which are different from the examination-in-chief and the case of the prosecution, which the witness has not stated anywhere and has also therefore observed that re-examination of the witness is necessary. However, after considering the submissions made, the Magistrate has concluded that the Court has discretion and has also come to the conclusion that the witness is hostile and thereby, has allowed the request made by the learned Assistant Public Prosecutor.
18. Considering the ratio laid down by the Hon'ble Apex Court, this Court as well as other High Courts, the powers under [SECTION] of the [ACT] is to be exercised in a judicious manner. In the instant case, the witness has stated more than what he has stated in the examination-in-chief. The defence has elicited more facts than what the learned Assistant Public Prosecutor has asked the witness in the examination-in-chief. Though it is true that there is no definite rule of universal application as to when and in what circumstances, the Magistrate can exercise the jurisdiction under [SECTION] of the [ACT], in the facts and circumstances of the present case, only because the witness has stated further than what he has stated in the police statement and examination-in-chief, it cannot be said that the witness has shown hostility to the prosecution. This Court is therefore of the opinion that the Magistrate has not exercised discretion in a judicious manner. The Magistrate ought to have considered the case for re-examination of the said witness as provided under [SECTION] of the [ACT]. Considering all these in totality, it cannot be said that the Magistrate has rightly exercised the discretion.
The contention put forward by the learned APP that the conduct of the said witness after the impugned order is such that his credit worthiness has become doubtful mainly because of the reason that the said witness himself filed an application before the Magistrate praying that he should not be declared hostile, cannot be justified that the Magistrate has exercised the jurisdiction in a proper manner.
19. In view of the aforesaid, the impugned order dated 10.10.2012 passed by the Additional Chief Judicial Magistrate in [CASE NUMBER] is hereby quashed and set aside. Accordingly, the petition is allowed. Rule is made absolute.
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