2001 JTR(SC) 1284
2002 1 AICLR 281 ; 2002 AIR(Jhar)(R) 804 ; 2002 AIR(SC) 2432 ; 2002 AIR(SCW) 2667 ; 2002 1 BBCJ(SC) 89 ; 2002 1 BLJR 287 ; 2002 3 CriCC 317 ; 2002 3 Crimes(SC) 70 ; 2002 CrLJ 3236 ; 2002 1 EastCrC(SC) 214 ; 2001 10 JT 276 ; 2002 4 RCR(Cri) 508 ; 2002 9 SCC 626 ; 2004 SCC(Cri) 449 ; 2002 5 Supreme 207
2002(5) Supreme 207
SUPREME COURT OF INDIA
K.T. Thomas & S.N. Variava, JJ.
State of Bihar -Appellant
versus
Lalu Prasad @ Lalu Prasad Yadav & Anr. -Respondents
Criminal Appeal No. 943 of 2001
(Arising out of SLP (Crl.) No. 2463 of 2001)
Decided on 14-9-2001
IMPORTANT POINT
Order declining permission to treat witness hostile on ground that in cross examination he gave answers in favour of defence called for no interference when witness had not stuck to the stand in examination-in-chief but permission was not sought at that stage.
Act Referred :EVIDENCE ACT : S.154
(A) Section 154 of the Evidence Act empowers a court, in its discretion, to permit the party calling a witness to examine that witness with questions that could otherwise be posed during cross-examination. In this appeal, the provision is engaged where a public prosecutor, having failed to seek such permission during the chief examination, sought to treat the witness as hostile and to re-examine him after cross-examination. The High Courts discretion to intervene was limited, given the procedural default and the adequacy of alternative remedies under the same section.
(B) The key legal principles are: the discretionary power of the court under Section 154, the importance of timely exercise of such power, the adequacy of remedies like refusing to own the witnesss testimony, and the appellate courts restrained role where discretion was reasonably exercised.
Facts of the case:
A witness gave evidence that was inconsistent with the prosecution case. The public prosecutor did not seek permission to ask cross-examination questions during the chief examination. After cross-examination, the prosecutor sought to treat the witness as hostile. The trial judge denied permission, and the High Court declined to interfere.
Findings of Court:
The trial judge correctly exercised his discretion in declining to permit cross-examination after the window had closed, especially given the prosecutors earlier inaction and the availability of alternative measures under Section 154.
Issues:
Whether a public prosecutor can seek permission to treat a witness as hostile and to re-examine after cross-examination when such permission was not sought earlier, and whether the trial judge erred in refusing it.
Ratio Decidendi:
Where a party calling a witness fails to secure Section 154 permission in a timely manner, and alternative options remain available, the appellate court will not disturb the trial judges reasonable discretion to deny the request.
Result:
The appeal is disposed of.
(A) Section 154 of the Evidence Act empowers a court, in its discretion, to permit the party calling a witness to examine that witness with questions that could otherwise be posed during cross-examination. In this appeal, the provision is engaged where a public prosecutor, having failed to seek such permission during the chief examination, sought to treat the witness as hostile and to re-examine him after cross-examination. The High Courts discretion to intervene was limited, given the procedural default and the adequacy of alternative remedies under the same section.
(B) The key legal principles are: the discretionary power of the court under Section 154, the importance of timely exercise of such power, the adequacy of remedies like refusing to own the witnesss testimony, and the appellate courts restrained role where discretion was reasonably exercised.
Facts of the case:
A witness gave evidence that was inconsistent with the prosecution case. The public prosecutor did not seek permission to ask cross-examination questions during the chief examination. After cross-examination, the prosecutor sought to treat the witness as hostile. The trial judge denied permission, and the High Court declined to interfere.
Findings of Court:
The trial judge correctly exercised his discretion in declining to permit cross-examination after the window had closed, especially given the prosecutors earlier inaction and the availability of alternative measures under Section 154.
Issues:
Whether a public prosecutor can seek permission to treat a witness as hostile and to re-examine after cross-examination when such permission was not sought earlier, and whether the trial judge erred in refusing it.
Ratio Decidendi:
Where a party calling a witness fails to secure Section 154 permission in a timely manner, and alternative options remain available, the appellate court will not disturb the trial judges reasonable discretion to deny the request.
Result:
The appeal is disposed of.
ORDER
Leave granted.
2. A witness was sought to be treated as hostile by a public prosecutor on the ground that he gave answers in favour of the defence during cross-examination. The trial judge declined to permit the public prosecutor to cross examine and witness as per an order passed by him. The C.B.I. which was prosecuting the case took up the matter before the High Court. By the impugned judgment, the High Court declined to interfere. Hence, this appeal by special leave.
3. We read the copy of the deposition of PW-39 (Baleshwar Choudhary) on whose evidence the present controversy has arisen. He mentioned about a document executed in 1993 styling the same as a sale deed executed. After referring to the same in the Chief-examination, the same witness further stated that he received the consideration thereof in 1983. The said last part of the chief-examination is obviously not in consonance with the prosecution case. But the public prosecutor did not choose to seek permission of the trial court to put questions to the witness which might be put in cross-examination by the adverse party. Hence, the examination proceeded to the cross-examination by the adverse party. It was in the cross-examination that the witness said further details of how he received the consideration. At the said stage, public prosecutor requested for permission (after cross-examination was over) to treat the said witness as hostile.
Section 154 of the Evidence Act reads thus:
154. Question by party to his own witness. 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.
4. Learned counsel for the appellant invited our attention to the decision of this Court in Dahyabhai Chhaganbhai Thakker v. State of Gujarat [1964(7) S.C.R. 361] in support of his contention that it is open to the party who calls the witness to seek the permission of the court (as envisaged in section 154 of the Evidence Act) at any stage of the examination.
5. Nonetheless, a discretion has been vested with the court whether to grant the permission or not. Normally, when the public prosecutor request for permission to put cross questions to a witness called by him, the court used to grant it. Here, if the public prosecutor had sought permission at the end of the chief examination itself, the trial court would have no good reason for declining the permission sought for. But the public prosecutor did not do so at that stage. That is precisely the reason why the trial judge declined to exercise his discretion when the permission was sought for after the cross-examination was over. The witness has said only the details in cross-examination regarding the matter which he said in the chief examination itself. It would have been a different position if the witness stuck to his version, he was expected to say by the party who called the witness, in the examination in chief, but he showed propensity to favour the adverse party only in cross-examination. In such case, the party who called him has a legitimate right to put cross question to the witness. But is he resiled from his expected stand even in chief examination, the permission of pout cross-questions should have been sought then.
6. In the above situation, we are unable to hold that the trial judge has gone wholly wrong in declining to exercise the discretion envisaged under section 154 of the Evidence Act in favour of the appellant. Be that as it may, if the public prosecutor is not prepared to own the testimony of the witness examined by him, he can give expression of it in different forms. One of such forms is the one envisaged in section 154 of the Evidence Act. The very fact that he sought permission of the court soon after the end of the cross examination, was enough to indicate his resolve, not to own all what the witness said in his evidence. It is again open to the public prosecutor to tell the court during final consideration that he is not inclined to own the evidence of any particular witness inspite of the fact that said witness was examined on his side. When such options are available to a public prosecutor, it is not a useful exercise for this Court to consider whether the witness shall again be called back for the purpose of putting cross questions to him.
7. With the above observations, we dispose of this appeal.
Appeal disposed of.
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Parallel Citations of other Journals :
State of Bihar v. Lalu Prasad @ Lalu Prasad Yadav & Anr., 2002(5) Supreme 207 : 2001 (10) JT 276 : 2002(1) All.Crl.L.R. 281 : AIR 2002 SC 2432 : 2002(3) Crimes 70 : 2002 Crl.L.J. 3236
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