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2013 DIGILAW 2522 (BOM)

Raju s/o. Manik Futane v. State of Maharashtra

2013-12-06

P.D.KODE

body2013
JUDGMENT Rule. Rule made returnable forthwith. Mr. Thakare, learned A.P.P. appears waiving service of the rule. Considering the short controversy involved, heard finally by consent of the parties. 2. By the present petition under Article 227 of the Constitution of India, the accused in Criminal Case No.270/2007 pending on the file of Judicial Magistrate, First Class, Hinganghat, have assailed the order dated 26.8.2013 passed by the trial court rejecting an application Exh.53 preferred by the petitioners for striking out two answers recorded at the end of examination-in-chief of PW3 Chandrabhan s/o Rama Sadavarte. 3. The perusal of order reveals that the trial court had not negatived contention of all the said answers being brought on the record due to questions put by the court. On the contrary, it reveals that questions were required to be asked by the trial court due to failure of learned A.P.P. to bring the relevant matters on the record. The reasoning further shows that such questions were asked for bringing on the record the relevant matters as emerged from answers and said to be appearing in the statement of PW3 recorded under Section 161 of the Code of Criminal Procedure, but concern witness having omitted to depose said matters and further the learned A.P.P. conducting the case having failed to bring relevant aspect on the record. The order reveals that the trial court justified asking of such questions in view of the powers vested by virtue of provisions under Section 165 of the Evidence Act. 4. Mr. Kariya, learned counsel for the petitioners, was very much right in submitting that though the power is conferred upon the court of putting a question to any witness under Section 165 of the Evidence Act, 'in any form, at any time' the same is conferred for the meaningful purposes for obtaining proper proof of relevant facts. The learned counsel was further very much right in submitting that such a power is to be always exercised properly without causing any prejudice to other side. The learned counsel was very much right in submitting that deposition of PW3 recorded by the trial court does not reveal that surfacing all the relevant answers on the record was due to act of the court putting the questions, in as much as the record does not reveal accordingly. The learned counsel was very much right in submitting that deposition of PW3 recorded by the trial court does not reveal that surfacing all the relevant answers on the record was due to act of the court putting the questions, in as much as the record does not reveal accordingly. The learned counsel justified the said submission by drawing attention to deposition of PW3 and particularly not revealing that the said matters were recorded in question and answer form i.e. the questions put by the court and answers received. The learned counsel thus contended that the record of the said case and particularly deposition of PW3, so far recorded, not revealing the true happenings and giving an impression that the said material was brought on the record during examination-in-chief taken by learned A.P.P. and the contrary position being reflected from the order passed by the trial court, the same cannot be legally sustained and is liable to be struck off. The learned counsel thus contended that the order impugned in the petition be quashed and set aside with a direction to proceed with the trial in accordance with the law. 5. Mr. Thakare, learned A.P.P. by drawing attention to the provision of Section 165 of the Evidence Act and particularly the phrase therein "in any form, at any time" submitted that no fault can be found with the trial court, as trial court was empowered to put such questions, even during recording of examination-in-chief of the said witness. It is thus submitted that said answers may not be struck off from the record. 6. After giving anxious consideration to the submissions advanced by both the parties and carefully examining the record, there appears substance in the submission canvassed by the learned counsel for the petitioners. Undoubtfully, it is true that, by virtue of the provision contained in Section 165 of the Evidence Act, the power had been conferred upon the court for putting the questions regarding relevant or even irrelevant facts in order to obtain proper proof of relevant facts. However, it is settled legal position that such a power is to be very cautiously used and the same is not to be used to detriment of any of the party. However, it is settled legal position that such a power is to be very cautiously used and the same is not to be used to detriment of any of the party. The recitals in order impugned that PW3 has omitted to narrate the matters which were contained in police statement, gives an impression that the court has used the police statement for the purposes which was not permissible according to law. The glance at the deposition also does not reveal that the record of the question put by the court and the answer received was properly maintained, as the deposition reveals that the relevant answers are recorded in continuity with examination-in-chief taken by the learned A.P.P. It is also settled legal position and practice of exercising power under Section 165 of the Evidence Act, after both the sides plays their role i.e. after examination-in-chief is recorded, the concern witness is cross examined by adversary and the re-examination is effected. No doubt, in exceptional circumstance, court may intervene even in such stages for bringing some incidental material left to be brought on the record due to inadvertence. However, considering the matters for which the question was asked at an interim stage, does reveal that the power under Section 165 of the Evidence Act was not properly used. Though, it is true that the prosecution has not challenged the relevant aspect, it appears that by asking such a question at such a stage, the court had over step its province. In the circumstances, the material brought on the record in proper manner cannot be legally sustained. By way of caution, it is added that by the aforesaid, it is not intended to be conveyed that court could not have used such a power, but it is only intended to be conveyed that the same was not exercised at an appropriate stage and making user the police statement in impermissible manner during the midst of trial. 7. Resultantly, the petition is allowed. The order dated 26.8.2013 of rejecting an application Exh.53 is hereby quashed and set aside. The relevant part recorded in examination-in-chief, as stated in the said application, stands struck off. The trial court is further directed to proceed with the said trial from the stage of cross-examination of PW3. 8. Rule is made absolute in the aforesaid terms. Petition allowed.