IN THE HIGH COURT OF JUDICATURE OF ANDHRAPRADESH AT HYDERABAD HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL PETITION No.5054 of 2008 DATE:29.07.2010 Between: Sri B.Tejaiah …… Petitioner And: The State of Andhra Pradesh through Anti Corruption Bureau Warangal Range, Warangal. …..Respondent HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL PETITION No.5054 of 2008 ORDER : Grievance of the petitioner/A-1 in C.C. No.55 of 2003 on the file of Principal Special Judge for S.P.E and A.C.B Cases, Hyderabad is about the way in which the Special Public Prosecutor in the lower Court recalled P.W-1 and made him to depose during his cross examination by the Special Public Prosecutor. P.W-1 is the decoy witness. During cross-examination by the defence counsel, he was confronted with Ex.D-1 challan and P.W-1 admitted that it contained his signatures. After closure of P.W-1’s re-examination and when he went out of the witness box, it is alleged that the special public prosecutor took P.W-1 to a corner in the Court hall and asked him to deny his signatures in Ex.D-1 challan. Thereafter on oral request of the special public prosecutor, P.W-1 was recalled and permission was granted to the special public prosecutor to cross-examine P.W-1 as he turned hostile to the prosecution. In the said cross-examination by the special public prosecutor after his recall, P.W-1 denied his signatures in Ex.D-1 challan. But in further cross-examination by the defence counsel, he admitted that he was shown Ex.D-1 by the special public prosecutor in the open Court in the presence of Devender and Viswanath who are advocates and that he had discussed about Ex.D-1 with the special public prosecutor. 2) Placing reliance on Mohd. Hussain Umar Kochra V. K.S.Dalipsinghji[1] of the Supreme Court, it is contended by the petitioner’s counsel that the procedure adopted by the Special Public Prosecutor in the lower Court and the procedure adopted by the lower Court during trial are un- warranted and are against principles of law. The relevant extract from the Mohd. Hussain Umar Kochra (1 supra) is as follows: “AS to the last question, we find that examination-in-chief of Prosecution witness 50 Ali commenced on 7/10/1960 and was concluded on 10/10/1960. His cross-examination commenced on 21/08/1961 and was concluded on 4/09/1961. On 6/03/1962 and again on 21/06/1962 the defence applied for recalling Ali for cross- examination. The learned Magistrate rejected the two applications. According to the defence Ali was repentant and wanted to say that he had given false evidence. In our opinion, no ground was made out for recalling Ali. There was no affidavit from Ali nor was there any other material showing that his testimony was incorrect in any material particular. The Court has inherent power to recall a witness if it is satisfied that he is prepared to give evidence which is materially different from what he had given at the trial. In this case there was no material upon which the Court could be so satisfied. The learned Magistrate rightly disallowed the prayer for recalling Ali.” 3) Therefore, it is contended by the petitioner’s counsel that that portion of evidence of P.W-1 is liable to be eschewed from record. In my opinion, the question of eschewing a part of oral testimony of a witness does not arise all the facts which happened inside the Court and as disclosed by the witness were meticulously recorded by the lower Court. Thereafter, ultimately it is for the lower Court to assess evidence on record and also the circumstances under which P.W-1 gave the above evidence. The said assessment of evidence on record cannot be undertaken by this Court in this petition under Section 482 Cr.P.C. Therefore, I deem it fit to keep that question open to be decided by the lower Court having regard to all the circumstances in which P.W-1 admitted signatures in Ex.D-1, and how he was recalled and what was his evidence after his recall during cross-examination by the public prosecutor. 4) Subject to the above observations, the petition is dismissed. _______________________________ SAMUDRALA GOVINDARAJULU, J July 29, 2010 KSH [1] AIR 1970 SUPREME COURT 45