Rajpal Singh Vs. C.B.i. - Court Judgment

Excerpt:

.....he filed complaint regarding the same after expiry of long time - no justification provided for said delay - further, prosecution as well as trial court not examined truthfulness of complaint of threatening which was not supported by any prima facie evidence - however, in such cases, before recalling of any witness, the complaint must be properly examined by trial court and only if court found that complaint was correct than only it can recall witness for reexamination - thus, petition allowed in part and impugned order set aside - motor vehicles act, 1988 [c.a. no. 59/1988]section 147; [a.k. patnaik, cj, s.s. jha & a.m. sapre, jj] liability of insurer - third party insurance held, the insured who is a party to the insurance is not a third party for the purpose of chapter xi of the act, particularly section 147 thereof. thus, any person other than the insurer and the insured who are parties to the insurance policy is a third party. the insurer, however, would not be liable for any bodily injury or death of a third party in an accident unless the liability is fastened on the insurer under the provisions of section 147 of the act or under the terms and conditions of the..........taken by the applicant for dismissal of the said application. on consideration the application was allowed and the said witness was recalled by the trial court.4. counsel for applicant has submitted that once the witness has been examined cross-examined and discharged and he did not support to the prosecution case, for whatever reasons and afterwards if he wants to change his version or wants to examine himself again then his choice could not be a ground for recalling him for re-examination, otherwise no trial would come to an end and on every occasion such application could be moved for prolonging the trial. he also submitted that as per the settled legal position either party, prosecution or defence could not be permitted to fill up the lacunae as left by them at the appropriate stage. in support of his contention he cited the decided case of the apex court pronounced in the matter of satyajit banerjee and ors. v. state of w.b. and ors. : 2005crilj648 and prayed for quashment and setting aside the impugned order.5. while, on the other hand, shri jayant neekhara learned standing counsel for union of india appearing on behalf of respondent/cbi submitted that in appropriate.....

Judgment:

ORDER

U.C. Maheshwari, J.

1. This petition is directed under Section 482 of Criminal Procedure Code for setting aside and quashment of the order dated 28-4-2005, passed by third Additional Sessions Judge and Special Judge/CBI, Bhopal in Special Case No. 6/04

2. It is not in dispute that a trial under Sections 7, 13(2) and 13(1)(d) of the Prevention of corruption Act, 1988 is pending against the applicant in which Shri Ajay Tiwari (P. W. 2), the alleged Manager of M/s. Communication Ltd. Co. was examined on dated 16-12-2004 as prosecution witnesses. Subsequent to this witness some other witnesses have also been examined. The aforesaid witness became hostile and did not support to the prosecution case. Subsequently he filed a complaint on dated 11-3-2005, to the Ministry of Personal Public Grievances and Pensions (Department of Personal and Training) Regulation New Delhi alleging that he was under threat and compulsion to give such statement as given on aforesaid date. By explaining the circumstances regarding threat and compulsion the witness Ajay Tiwari also made an application to the Superintendent of Police CBI, Bhopal for his re-examination by recalling him in the Court and also prayed protection for his family. Al-ongwith the copy of such application and application under Section 311 of Cr.PC for recalling this witness was submitted by Inspector of Police CBI Bhopal in which it was stated that being complainant of the case, Shri Ajay Tiwari was examined on 16-12-2004 and prior to recording his statement in the Court he was threatened by account officer of BSNL Rajpal Singh on telephone No. 2771525. Such complaint was made to him by children and due to such threatening the real story was not stated by him in his deposition.

3. By filing the reply of this application various objections have been taken by the applicant for dismissal of the said application. On consideration the application was allowed and the said witness was recalled by the Trial Court.

4. Counsel for applicant has submitted that once the witness has been examined cross-examined and discharged and he did not support to the prosecution case, for whatever reasons and afterwards if he wants to change his version or wants to examine himself again then his choice could not be a ground for recalling him for re-examination, otherwise no trial would come to an end and on every occasion such application could be moved for prolonging the trial. He also submitted that as per the settled legal position either party, prosecution or defence could not be permitted to fill up the lacunae as left by them at the appropriate stage. In support of his contention he cited the decided case of the Apex Court pronounced in the matter of Satyajit Banerjee and Ors. v. State of W.B. and Ors. : 2005CriLJ648 and prayed for quashment and setting aside the impugned order.

5. While, on the other hand, Shri Jayant Neekhara learned Standing Counsel for Union of India appearing on behalf of respondent/CBI submitted that in appropriate circumstances the examined witness could be recalled by the Court by keeping in mind the concept of fair trial. If any stage any witness or the victim or informant has been tampered and in such circumstances come before the Court then by consider it the examined witness could be recalled and the Trial Court has not committed any error in allowing his application for recalling the witness Ajay Kumar. He also cited a decided case of the Apex Court in the matter of Zahira Habibulla H. Sheikh and Anr. v. State of Gujarat and Ors. reported in : 2004CriLJ2050 , which is commonly known as 'Best Bakery Case' and prayed that order for recalling the witnesses passed by the Trial Court can not be said that the order is passed under the error of jurisdiction. The Section 311, Cr.PC provides the ample powers to Court for recalling of any witness at any stage of the case.

6. Having heard the learned Counsels, on perusal of the papers placed on record, it is found that the said witness Ajay Tiwari is complainant of bribery case against the applicant and was examined on 16-12-2004 and did not support the prosecution as such became hostile and subsequent to it within considerable time no complaint was made by this witness directly to the Trial Court but as alleged in complaint such threat was given prior to his earlier examination. The complaint was given to the Superintendent of Police and copy was also supplied to DIG CBI Bhopal as such the complaint was received by those offices only on 11-3-05 round about more than 2-1/2(two and half months) months from his examination in the trial. In such complaint elaborate contention and reasons have not been mentioned that what type of message have been received by him. Only ground of insecurity has been mentioned and due to that some mental fears has also been alleged. It is apparent that no such inquiry regarding alleged allegations have been made by the Trial Court before passing the impugned order. Neither any affidavit nor other evidence has been produced by the concerning complainant or by the prosecution agency.

7. It also appears that without inquiry on the complaint of Ajay Tiwari the application under Section 311, Cr.PC was filed by the prosecution and the Court has also passed the order without any inquiry by itself or through agency, the impugned order is passed on assumption and presumption only.

8. Although a very elaborate order has been passed but nothing has been said about verification of the said complainant of Ajay Tiwari.

9. The aforesaid cited case of 'Best Bakery Case' (supra) was decided on the alleged elaborate facts and circumstances against prosecution agency and the de nova trial was ordered. But in the case at hand, the situation and the allegations are not the same as before the Apex Court while deciding the aforesaid 'Best Bakery Case' (supra). While on the other hand, the case cited by applicant in the matter of Satyajit Banerjee (supra) in which by giving some clarification regarding aforesaid 'Best Bakery Case' (supra) it has been held as under :-

25. The stands taken before the High Court to justify acceptance of additional evidence and directions for retrial were reiterated.

26. Mr. Sushil Kumar, learned Senior Counsel for the accused submitted that it is not correct to say that application under Section 391 of the Code was not admitted. It was in fact admitted and rejected on merits. It is also not correct to say that the investigation was perfunctory. The affidavits sought to be brought on record were considered on their own merits. While Zahira's prayer was for fresh investigation, the State's appeal in essence was for fresh trial. The four persons whose affidavits were pressed into service were P.Ws. 1, 6, 47 and 48.They were examined as P.Ws. and there was no new evidence. There can be no re-examination on the pretext used by the State for retrial. The original appeal filed by the State was Appeal No. 956 of 2003. There was first an amendment in September, 2003 and finally in December, 2003. The stand got changed from time to time. What essentially was urged or sought for, related to fresh trial on the ground that investigation was not fair. The stand taken by the State in its appeal is also contrary to evidence on record. Though one of the grounds seeking fresh trial was the alleged deficiencies of the Public Prosecutor in conducting the trial and for not bringing on record the contradictions with reference to the statements recorded during investigation, in fact it has been done. There was nothing wrong in treating the statement of Rahish Khan as the FIR. The High Court has rightly concluded that Zahira's statement was manipulated as if she had given information at the first point of time which is belied by the fact that it reached the Court concerned after three days. The High Court after analysing the evidence has correctly come to the conclusion that the police manipulated in getting false witnesses to rope in wrong people as the accused. Irrelevant and out-of-context submissions are said to have been made and grounds taken and reliefs sought for any Zahira in her appeal.

In view the aforesaid decisions of the Apex Court the extra-ordinary circumstances are not available in the case at hand in which the principles laid down in the 'Best Bakery Case' (supra) could be applied at this stage but the circumstance warrants to follow the principles dictum laid down in the matter of Satyajeet (supra) till some extent.

10. In view of the aforesaid, this Court is of the considered view that after examining of the witness, only on the basis of some complaint which is not supported by prima facie evidence the witness can not be recalled. Before recalling the witness the alleged circumstance in the complaint of the witness should be examined by the Trial Court itself or through any reliable agency and in such inquiry any circumstance as mentioned in the complaint are found correct then only such application could be allowed. Thus, the petition is allowed in part and the order of the Trial Court is set aside with direction that an inquiry be carried out regarding truthfulness of the complaint made by the said witness to the Superintendent of Police CBI, Bhopal and on receiving such inquiry report by considering the same a fresh order be passed in view of Section 311,Cr.PC.

11. The petition is allowed in part as indicated above.