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1998 DIGILAW 877 (RAJ)

Kishori Lal v. State of Rajasthan

1998-08-14

A.K.SINGH

body1998
Judgment Amaresh Kumar Singh, J.-Heard the learned counsel for the petitioners, learned public prosecutor and the learned counsel for non-petitioner No. 2. 2. Theshort question arising for decision in this petition is whether in an inquiry which is being conducted by a Court under Section 340 of the Criminal Procedure Code, 1973, the persons against whom there are allegations of having committed offences covered by Section 195 of the Criminal Procedure Code, have a right to take part in the inquiry and cross-examine the witnesses who may be examined by the Court either suo motu or at the instance of the complainant? 3. By theorder dated 13-8-1996 the Sub-Divisional Magistrate, Jodhpur, in Criminal Case No. 98/96, Kishori Lal vs. Banshi Lal in proceedings under Section 340 of the Criminal Procedure Code held that the non-applicants against whom the inquiry was being conducted had a right to take part in the proceedings. He, therefore, rejected the application filed by the complainant party. 4. A revision petition was filed against the order dated 13-8-1996 passed by the Sub-Divisional Magistrate. Jodhpur. 5. The Revision Petition (No. 16/96, Om Prakash vs. State of Rajasthan) was disposed of by the learned Addl. Sessions Judge No. 2, Jodhpur by order dated 20th December, 1996. The learned Addl. Sessions Judge held that the non-applicants (petitioners) had a right to take part in the inquiry being conducted under Section 340 of the Criminal Procedure Code but they had no right to cross-examine the witnesses to be examined during the inquiry. 6. Feeling aggrieved by the latter part of the order passed by the learned Addl. Sessions Judge, the petitioners have filed this petition under Section 482 of the Criminal Procedure Code with the prayer that the impugned order passed by the learned Addl. Sessions Judge be quashed and the petitioners be permitted to cross-examine the witnesses to be examined in the inquiry under Section 340 of the Criminal Procedure Code 7. In order that the submissions made by learned counsel for the petitioners and learned counsel for non-petitioner No. 2 may be properly appreciated it would be pertinent to point out that Section 195 of the Criminal Procedure Code carves out an exception, in case of certain offences which are committed by parties or other persons in relation to proceedings in the Court. On account of the provisions of Section 195 of the Criminal Procedure Code, the general power of the Criminal Court to take cognizance under Section 190 of the Criminal Procedure Code is subject to the restriction that the cognizance of the offences mentioned in Section 195 of the Criminal Procedure Code cannot be taken otherwise than on a complaint of the concerned Court. A complaint by the Court, in which or in relation to proceedings of which Court, the alleged offences were committed is necessary for enabling the Criminal Court to take cognizance of the offences. Before a complaint may be filed by the Court in respect of offences covered by Section 195 of the Criminal Procedure Code it is necessary that the Court must comply with the provisions of Section 340, Criminal Procedure Code. Provisions analogous to Section 340 of the Criminal Procedure Code, 1973 were to be found in Section 476 of the Code of Criminal Procedure, 1898. The Court in which the offences mentioned in Section 195 are committed empowered to conduct the preliminary inquiry. 8. The very object of the provisions contained in Section 195 read with Section 340 of the Criminal Procedure Code, 1973 and the provisions of Section 195 read with Section 476 of the Criminal Procedure Code, 1898 as pointed out in AIR 1971 SC 1935 : 1971 CriLJ 1437, Patel Lalji Bhai Soma Bhai vs. State of Gujarat, was to enable the Court in which the offence has been committed to take steps to protect the judicial proceedings from being interfered with by the commission of offences in relation to such proceedings so that the dignity of the Court may be maintained. 9. Thevery object of the inquiry under Section 340 of the Criminal Procedure Code is to find out if there is a sufficient justification for filing a complaint against one or more persons who is/are alleged to have committed one or more offences covered by Section 195 of the Criminal Procedure Code. 9. Thevery object of the inquiry under Section 340 of the Criminal Procedure Code is to find out if there is a sufficient justification for filing a complaint against one or more persons who is/are alleged to have committed one or more offences covered by Section 195 of the Criminal Procedure Code. It is, therefore, in the fitness of things that opportunity should be given to the persons against whom there are allegations of having committed the offences, to lake part in the proceedings, and, explain their conduct so as to convince the Court, conducting the inquiry that no offence was committed or that the offence committed is not of such nature as to warrant lodging of the complaint against them. I, therefore, find no reason to interfere with the view taken by the learned Sub-Divisional Magistrate, Jodhpur and the learned Addl. Sessions Judge that the petitioners against whom the inquiry is being conducted have right to take part in the proceedings. 10. Thesecond question that arises for determination is whether the petitioners against whom the inquiry is conducted by the Sub-Divisional Magistrate have a right to cross-examine the witnesses to be examined during the inquiry. The right to cross-examine, it may be noted, was not recognized in the early years of present Anglo-Saxon system of administration of justice. This right was developed at a later stage and Section 138 of the Evidence Act deals with the right to cross-examine. Section 138 of the Evidence Act reads “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 and cross-examination must relate to relevant facts, but the cross-examination need not be confined to the facts to which the witness testified in his examination-in-chief …………… ……………” A bare perusal of Section 138 of the Evidence Act shows that in any proceedings before any Court as defined in Section 3 of the Act, a witness is examined-in-chief , and, if the opposite party has a right to take part in the proceedings, then, such party shall have a right to cross-examine the witness if such party so desires. 1 am, therefore, of the opinion that the right to cross-examine the witness is available to a party, who is entitled to take part in the inquiry or trial or in any proceedings before a Court, and, this right is available by virtue of Section 138 of the Evidence Act. Learned counsel for the non-petitioner No. 2 has not brought to my notice any such authority in which a contrary view has been taken and the right to cross-examine has been denied to a party who is otherwise entitled to take part in the inquiry or trial. 11. Learned counsel for the non-petitioner No. 2 has referred to the definition of inquiry as given in Section 2 of the Criminal Procedure Code and the inquiry which is conducted by the Magistrate under Section 202 and submitted that in view of the definition of inquiry it is not necessary for the party complained against, to be given the right to cross-examine the witnesses. In an inquiry under Section 202, Criminal Procedure Code, 1973, the per-sons against whom the inquiry is conducted, do not have right to cross-examine the witnesses; but it is because of the fact that they have no legal right to take part in the inquiry, before the issue of process against them under Section 204 of the Criminal Procedure Code. There does not appear to be any express or implied controversion of the view taken by me that, if any party has a right to take part in an inquiry or trial, then such party can cross-examine the witness or witnesses if such party so desires, after the witness or witnesses have been examined-in-chief under Section 138 of the Evidence Act. 12. For the reasons mentioned above, the petition deserves to be allowed and it is allowed. The impugned order dated 20-12-1996 passed by the learned Addl. District and Sessions Judge No. 2, Jodhpur whereby he held that the petitioners are not entitled to cross-examine the witnesses is hereby quashed and set aside and the order of the learned Sub-Divisional Magistrate is restored. The petition is disposed of accordingly.