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2018 DIGILAW 155 (GUJ)

DINESHBHAI ZAVERBHAI VORA v. STATE OF GUJARAT

2018-01-17

J.B.PARDIWALA

body2018
JUDGMENT : 1. By this application under Article 227 of the Constitution of India, the applicant – original accused calls in question the legality and validity of the order dated 21st November 2017 passed by the 14th Additional Chief Judicial Magistrate, Rajkot, below Exhibit: 188 in the Criminal Case No.1878 of 1985, by which the Trial Court rejected the application Exhibit: 188 filed by the applicant accused herein, thereby disallowing certain questions to be put to the complainant i.e. the respondent No.2 herein in her cross-examination. 2. It is a very unfortunate and a matter of regret that I am dealing with a matter pending before the Court below past thirty two years. 3. The respondent No.2 herein lodged a complaint in the Court of the Chief Judicial Magistrate, Rajkot, against the applicant accused herein and the respondents Nos.3, 4 and 5 for the offence punishable under Sections 500 read with 114 of the Indian Penal Code. 4. It appears that the complainant i.e. the respondent No.2 is in the witness box and her cross-examination is in progress. The defence counsel put certain questions to the complainant in her cross-examination as regards few civil and criminal proceedings pending between the parties. The questions relating to the same were disallowed by the Trial Court on the ground that they were absolutely irrelevant; the defence was trying to unnecessarily protract the trial and waste the time of the Court, and more importantly, the information, which was sought to be elicited through such questions, has already come on record. 5. As the questions were disallowed, the applicant accused filed an application Exhibit: 188, which reads as under : “Reg: To cross examine the complainant to bring on record the facts regarding the civil suits mentioned by her in her examination-in-chief. The advocate for the accused respectfully submits that the complainant herein has, in her deposition at Exhibit – 34 and in the complaint at Exhibit – 1 of her chief examination, has stated the facts regarding the filing of suits i.e. R.C.S. No.665/75, 170/76, 164/79, 53/76 etc. The Hon'ble Court has not allowed us to ask her question in that regard to contradict her. Further, the complainant has preferred the present compliant against the accused under Section – 500 of the I.P.C. in connection with the chapter case No.14/84 filed against the complainant in the year 1984. The Hon'ble Court has not allowed us to ask her question in that regard to contradict her. Further, the complainant has preferred the present compliant against the accused under Section – 500 of the I.P.C. in connection with the chapter case No.14/84 filed against the complainant in the year 1984. In these circumstances, it is necessary to ask several questions regarding the litigations (Criminal as well as civil cases) filed by the complainant against the accused to show the conduct of the complainant on record and as to how many criminal and civil cases have been preferred by her against the accused. Further, justice has not been done with the accused and the ends of justice would not be met if cross examination at length of the complainant is not permitted merely on the ground that the complainant has filed complaint under Section – 500 of the I.P.C. Further, the privilege is granted to us as per Section – 146 of the Evidence Act to contradict the witness and to bring the real controversy on the records. In these circumstances also, the defence cannot be restrained from cross examining the complainant. Therefore, it is prayed : To pass an order in the interest of justice permitting the complainant to cross examine the complaint in details as regards the litigations filed by the complainant against the accused.” 6. The Trial Court, after hearing both the sides, passed an order, which reads as under : “Order below Exhibit – 188 in Criminal Case No.1878/1985 (1) The present application has been preferred as the defence has been frequently asking irrelevant questions during the cross-examination of the complainant and is wasting precious time of the Court. He has been time and again warned from not doing so. As he was asked to show the relevancy of the questions, he has submitted that, he has sought permission for cross-examination to bring the facts on record regarding the civil suits as stated in the examination in chief by the complainant. (2) Read the facts of the case on hand, the examination-in-chief of the complainant and the cross-examination of the complainant conducted by the defence on various dates. Ld. Advocate Mr. Shah for the defence has repeatedly asked the questions in the cross-examination, the facts of which have already been brought on record. (2) Read the facts of the case on hand, the examination-in-chief of the complainant and the cross-examination of the complainant conducted by the defence on various dates. Ld. Advocate Mr. Shah for the defence has repeatedly asked the questions in the cross-examination, the facts of which have already been brought on record. The questions are being asked repeatedly regarding the suits or cases or cases which have already been instituted and which has been stated by the complainant. The questions which are not relevant to this case, are being asked. As the ld. Advocate was restrained, he complained that he cannot conduct the cross in this manner and he wants to approach to the Hon'ble Sessions Court in this regard and pray for the adjournment. Although he was given due opportunity, yet he has not approached the Hon'ble Sessions Court at the relevant time and wasted the time granted by the Court. Thereafter, he preferred an application to transfer this case from this Court and prayed for the adjournment and wasted the time. As the said application was rejected and as the cross-examination of the complainant was resumed from the said stage, the ld. Advocate has exhibited the same conduct again. Thus, he is trying to protract the cross-examination and is wasting the precious time of the Court by asking irrelevant questions. The present application has been filed as the ld. Advocate was asked to put only relevant questions and was prevented from putting irrelevant questions during the cross-examination. By producing the copies of judgments delivered by the Hon'ble Supreme Court and High Courts i.e. (1) the judgment reported in AIR 1959, Andhra Pradesh-39 (2) the judgment delivered by Kerala High Court, reported in 1994 Cr.L.J. 464, the ld advocate has prayed to allow the said application for conducting cross-examination as according to the principles established in aforesaid judgments, he has all the right to conduct cross-examination of the complainant, as it is essential to bring the previous litigations on record to show the conduct of the complainant on record that the complainant has stated the fact of filing different cases during her examination-in-chief. In that regard, the argument of the ld. Advocate for the complainant have also been considered. He has also raised an objection during his argument by submitting that only relevant questions can be asked. (3) This Court completely accepts the principles explained in the aforesaid judgments. In that regard, the argument of the ld. Advocate for the complainant have also been considered. He has also raised an objection during his argument by submitting that only relevant questions can be asked. (3) This Court completely accepts the principles explained in the aforesaid judgments. Considered the arguments advanced by the ld. Advocate, the principles established in the judgments delivered by the Hon'ble Supreme Court and High Court, the facts of the present case and the questions asked by the ld. Adv. Shri Shah during the cross examination. This Court accepts the said principles with reverence. But, in the present case, no such circumstances have arisen before this Court for the purpose of questioning or impeaching the credibility of the witness in connection with the questions asked by the ld. Adv. or preventing his at the time of conducting the cross-examination as per the said principles. All the questions, wherein the ld. Advocate was prevented during the cross-examination of the complainant until now, were such which will not affect the defence of the ld. Advocate in any manner and he was stopped only during those questions which were totally irrelevant. As the situation as mentioned in the cited judgments has not arisen at this juncture, looking to the circumstances of the case, they are not helpful to the defence. (4) Thus, as the present application is not liable to be granted as discussed above, the following order is passed: ORDER The present application of the defence is rejected with cost of Rs.1,000/-. Order is passed to deposit the amount of cost Rs.1,000/- in Taluka Legal Aid Committee, Rajkot within 3 days. In default of payment of cost within 3 days, the right of the accused for cross examination of the complainant shall be closed and the trial of the case shall be conducted further. The defence shall take note of the same without fail. Pronounced in the open Court today on 21/11/2017. Dt.21-11-2017 Sd/- (Miss Kusumben Dalpatbhai Parmar) 14th Additional Chief Judicial Magistrate, Rajkot. (Code no.GJ01016)” 7. Being dissatisfied with the order passed by the Trial Court, the applicant is here before this Court with this application under Article 227 of the Constitution of India. 8. Mr. H.J. Karathiya, the learned counsel appearing for the applicant accused vehemently submitted that the Court below committed a serious error in passing the impugned order. (Code no.GJ01016)” 7. Being dissatisfied with the order passed by the Trial Court, the applicant is here before this Court with this application under Article 227 of the Constitution of India. 8. Mr. H.J. Karathiya, the learned counsel appearing for the applicant accused vehemently submitted that the Court below committed a serious error in passing the impugned order. He further submitted that the questions, which were sought to be put to the complainant in her cross-examination, could not be said to be irrelevant in any manner and the defence should have been permitted to put such questions so as to test the veracity of the complainant. The learned counsel submitted that Section 146 of the Evidence Act empowers a cross-examiner to put any question to test the veracity of the witness. Although the vast scope covered by Section 146 of the Evidence Act is subject to the Court's powers to control such question, as provided in Sections 147 to 152 of the Evidence Act, yet subject to such control, the cross-examiner is entitled to put any question to test the veracity of the testimony of the witness. 9. In such circumstances referred to above, Mr. Karathiya, the learned counsel appearing for the applicant prays that there being merit in this application, the same be allowed and the impugned order be quashed. 10. Mr. Karathiya, the learned counsel, in support of his submissions, placed reliance on two decisions : (1) Guntaka Hussenaiah vs. Busetti Yerraiah [AIR 1954 Andhra 39] (2) Surendra vs. State and others [1994 Cri.L.J. 464] 11. On the other hand, this application has been vehemently opposed by Mr. Prakash G. Trivedi, the learned counsel appearing for the respondent No.2 – original complainant. Mr. Trivedi, the learned counsel submitted that no error, not to speak of any error of law could be said to have been committed by the Court below in passing the impugned order. It is submitted that the impugned order is interlocutory in nature and this Court may not disturb such interlocutory order in exercise of the supervisory powers under Article 227 of the Constitution of India. 12. Mr. Trivedi, the learned counsel appearing for the respondent No.2 submitted that Section 152 of the Evidence Act empowers the Judge to forbid any question in cross-examination, which in his view, is irrelevant or is intended to annoy the witness. 12. Mr. Trivedi, the learned counsel appearing for the respondent No.2 submitted that Section 152 of the Evidence Act empowers the Judge to forbid any question in cross-examination, which in his view, is irrelevant or is intended to annoy the witness. Also the words used in Section 152 of the Evidence Act are “the Court shall forbid”, which makes it the duty of the Judge to forbid such questions. It is further submitted that, in view of the background of the testimony of the complainant already recorded and the materials on record, it can be said that the disallowed questions hold no relevancy or significance to the subject-matter and cannot be understood to have any bearing on the veracity of the witness. Drawing my attention to Section 130 of the Evidence Act, it is further submitted that the right to cross-examination of the defence counsel is restricted to the “relevant facts” of the case. It is submitted that Section 148 of the Evidence Act does not use the term “must”, instead used the term “may” in relation to warning the witnesses before answering an irrelevant question, hence, the discretion to allow or disallow “irrelevant” question to be answered by the witness is with the Judge. 13. In such circumstances referred to above, Mr. Trivedi, the learned counsel submitted that there being no merit in this application, the same be rejected. 14. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the Court below committed any error in passing the impugned order. 15. Let me first deal with the submission canvassed on behalf of the respondent No.2 – original complainant that the correctness of the order of the Court below being an interlocutory order cannot be examined by this Court under its writ jurisdiction under Article 226 of the Constitution or under its supervisory jurisdiction under Article 227 of the Constitution of India. 16. In Indian Renewable Energy Development Agency Ltd vs. Debts Recovery Appellate Tribunal and others 127 (2006) DLT 158, a Division Bench of the Delhi High Court held thus: "An order allowing or rejecting an application for cross-examination is only an interlocutory order. In the present case by the interlocutory order the application for cross examination has been partly allowed. 16. In Indian Renewable Energy Development Agency Ltd vs. Debts Recovery Appellate Tribunal and others 127 (2006) DLT 158, a Division Bench of the Delhi High Court held thus: "An order allowing or rejecting an application for cross-examination is only an interlocutory order. In the present case by the interlocutory order the application for cross examination has been partly allowed. In our opinion, this does not give rise to any cause of action. It is only when the final order is passed by the DRT disposing the proceedings before it finally that a cause of action will arise. In any event, writ jurisdiction is discretionary jurisdiction and a writ petition is not ordinarily entertained against an interlocutory order". 17. The maintainability of the present application may be seen in light of the law laid down by the Supreme Court. In the case of Chandravarkar Sita Ratna Roa vs. Ashlata S. Guram [ AIR 1987 SC 117 ], the Supreme Court observed that: "21. It is true that in exercise of jurisdiction under Article 227 of the Constitution the High Court could go into the question of facts or look into the evidence if justice so requires it, if there is any mis-direction in law or a view of fact taken in the teeth of preponderance of evidence. But the High Court should decline to exercise its jurisdiction under Articles 226 and 227 of the Constitution to look into the fact in the absence of clear cut down reasons where the question depends upon the appreciation of evidence. The High Court also should not interfere with a finding within the jurisdiction of the inferior tribunal except where the findings were perverse and not based on any material evidence or it resulted in manifest of injustice (See Trimbak Gangadhar Telang and Another (supra)). Except to the limited extent indicated above, the High Court has no jurisdiction." 18. Also in the case of Pepsi foods Ltd and another vs. Special Judicial Magistrate and others [1998 SCC (Cri) 1400], relying upon catena of judgments, the Supreme Court held that : “25. Nomenclature under which petition is filed is not quite relevant and that does not debar the Court from exercising its jurisdiction which otherwise it possesses unless there is special procedure prescribed which procedure is mandatory. Nomenclature under which petition is filed is not quite relevant and that does not debar the Court from exercising its jurisdiction which otherwise it possesses unless there is special procedure prescribed which procedure is mandatory. If in a case like the present one the Court finds that the appellants could not invoke its jurisdiction under Article 226, the Court can certainly treat the petition one under Article 227 or Section 482 of the Code. It may not however, be lost sight of that provisions exist in the Code of revision and appeal but sometime for immediate relief Section 482 of the Code or Article 227 may have to be resorted to for correcting some grave errors that might be committed by the subordinate Courts. The present petition though filed in the High Court as one under Articles 226 and 227 could well be treated under Article 227 of the Constitution.” 19. In the case of State, through Special Cell, New Delhi vs. Nayjot Sandhu @ Afshan Guru and others [ 2003 (6) SCC 641 ], the Supreme Court expressly recognized the powers of the High Court to interfere even with an interlocutory order in exercise of jurisdiction under Article 227 of the Constitution though it cautioned that such powers should be exercised sparingly and only with a view to keep the subordinate Courts within the limits of their authority and only in very exceptional circumstances, warranting interference in exercise of these extraordinary powers. Therefore, the judgment of the Supreme Court in the case of Nayjot Sandhu (supra) does not rule out invoking and exercise of constitutional powers of this Court in appropriate cases. 20. The main grievance of the counsel for the applicant is that unless the questions put to the witness are forbidden under Section 151 or 152 of the Indian Evidence Act, the Court cannot disallow the questions put to the witness in his cross-examination. It was also his submission that if the questions put to a witness were not to be allowed, the right course for the Trial Judge under Section 148 was to decide if the witness was to be compelled to answer the same or not and if he thinks fit, he may warn the witness that he was not obliged to answer. 21. Under the scheme of the Evidence Act, Chapter X deals with the examination of the witnesses. 21. Under the scheme of the Evidence Act, Chapter X deals with the examination of the witnesses. The Different kinds of responsibility are cast on the Judge in different provisions of this Chapter while recording evidence. Then the Courts also have extensive powers for protecting the witnesses from the questions not lawful in cross examination as set out in Sections 146 to 153 of the Evidence Act. Under Section 136, the Judge has not only to satisfy that the evidence that was to be led was relevant but, in what manner if proved, would be relevant. It was only if he was satisfied that the evidence, if proved, would be relevant, that he could admit the same. If it is his duty to admit all the relevant evidence, it is no less his duty to exclude all irrelevant evidence. Section 5 of the Act also declares that "evidence may be given in any suit or proceedings of the existence or non-existence of every facts in issue and of such other facts as hereinafter will be declared to be relevant, and of no others. From this, it comes out to be that the Judge is empowered to allow only such evidence to be given as is, in his opinion, relevant and admissible and in order to ascertain the relevancy of the evidence which a party proposes to give, he may ask the party, in what manner, if evidence proved, would be relevant and, he may then decide as to its admissibility. In fact, the question of relevancy is of great nicety and sometimes, great difficulty is felt by the Trial Judge in deciding question of relevancy. Therefore, it is desired that in doubtful cases, he should admit rather than excluding the evidence. 22. Section 137 of the Evidence Act gives a statutory right to the adverse party to cross-examine a witness. Section 138 of the Evidence Act only lays down the three processes of examination to which a witness may be subjected. It does not deal with the admissibility of the evidence. It also provides that 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. Under this Section, the cross-examination can go beyond the facts narrated in examination-in-chief, but all such questions must relate to relevant facts. It also provides that 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. Under this Section, the cross-examination can go beyond the facts narrated in examination-in-chief, but all such questions must relate to relevant facts. It is not that under the right of cross examination, the party will have the right to ask reckless, irrelevant, random and fishing questions to oppress the witness. The "relevant facts" in cross examination of course have a wider meaning than the term when applied to examination-in-chief. For instance, facts though otherwise irrelevant may involve questions affecting the credit of a witness, and such questions are permissible in the cross examination as per Section 146 and 153 but, questions manifestly irrelevant or not intended to contradict or qualify the statements in examination-in-chief, or, which do not impeach the credit of a witness, cannot be allowed in cross examination. It is well-established rule of evidence that a party should put to each of a witness so much of a case as concerns that particular witness. 23. It is experienced that sometimes, cross-examination goes rambling way and assumes unnecessary length and is directed to harass, humiliate or oppress the witnesses. It is also experienced that the Courts often either due to timidity or the desire not to become unpopular or at times, not knowing its responsibilities and powers, allow the reckless, scandalous and irrelevant cross examinations of witnesses. In fact, in such situations, the court has the power to control the cross-examination. The court has a duty to ensure that the cross-examination is not made a means of harassment or causing humiliation to the witness. While allowing latitude in the cross examination, court has to see that the questions are directed towards the facts which are deposed in chief, the credibility of the witness, and the facts to which the witness was not to depose, but, to which the cross examiner thinks, is able to depose. It is also well-established that a witness cannot be contradicted on matters not relevant to the issue. He cannot be interrogated in the irrelevant matters merely for the purpose of contradicting him by other evidence. If it appears to the Judge that the question is vexatious and not relevant to any matter, he must disallow such a question. It is also well-established that a witness cannot be contradicted on matters not relevant to the issue. He cannot be interrogated in the irrelevant matters merely for the purpose of contradicting him by other evidence. If it appears to the Judge that the question is vexatious and not relevant to any matter, he must disallow such a question. Even for the purpose of impeaching his credit by contradicting him, the witness cannot be put to an irrelevant question in the cross examination. However, if the question is relevant to the issue, the witness is bound to answer the same and cannot take an excuse of such a question to be criminating. That being so, it can be said that a witness is always not compellable to answer all the questions in cross examination. The court has ample power to disallow such questions, which are not relevant to the issue or the witness had no opportunity to know and on which, he is not competent to speak. This is in consonance with the well-established norm that a witness must be put that much of a case as concerns that particular witness. 24. A protracted and irrelevant cross examination not only adds to the litigation, but wastes public time and creates disrespect of public in the system. The court is not to act a silent spectator when evidence is being recorded. Rather, it has the full power to prevent continuing irrelevancies and repetitions in cross examination and to prevent any abuse of the right of cross examination in any manner, appropriate to the circumstances of the case. The Court could have such a power to control the cross examination apart from the Evidence Act as also the Code of Criminal Procedure. Section 146 of the Evidence Act though relaxes the ambit of cross examination and permits the putting of questions relating to the trustworthiness of the witness, but such questions also must be relevant for the purpose of impeaching the credit, though not to the issue. Under the garb of shaking credit, irrelevant or vexatious questions cannot be allowed, if they do not really impeach the credit of witness or do not challenge the evidence given in examination-in-chief relating the matter under enquiry. Under the garb of shaking credit, irrelevant or vexatious questions cannot be allowed, if they do not really impeach the credit of witness or do not challenge the evidence given in examination-in-chief relating the matter under enquiry. It is established proposition of law that if the question is directly relevant i.e. if it relates to the matters, which are points in issue, the witness is not protected to answer even it amounts to criminating him but, if it is relevant only tending to impeach the witness's credit, the discretion lies with the Judge to decide whether witness shall be compelled to answer it or not. Generally, he will not be allowed to be contradicted except in the cases under Section 153. In fact, Sections 132, 146, 147 and 148 embrace whole range of questions, which can properly be addressed to witness and these should be read together. 25. Thus, it can be said that the relevancy of evidence is of a two-fold character; it may be directly relevant in the bearing on, elucidating, or disproving, the very merits of the points in issue. Secondly, it can be relevant in so far as it affects the credit of a witness. As regard the relevancy relating to a credit of a witness, the court has to decide the same under Section 148 whether the witness is to be compelled to answer or not or to be warned that he is not obliged to answer. The Judge has the option in such a case either to compel or excuse. The provisions of Sections 148 to 153 are restricted to questions relating to facts which are relevant only in so far as they affect the credit of the witness by injuring his character; whereas some of the additional questions enumerated in Section 146 do not necessarily suggest any imputation on the witness's character. When we talk of the relevancy of the questions relating to character, unnecessarily provocative or merely harassing questions will not be entertained in this class of questions. 26. As per Sections 151 and 152 of the Evidence Act, the questions which are apparently indecent or scandalous or which appear to be intended to insult or annoy or are offensive in form, are forbidden. Such questions may be put either to shake the credit of witness or as relating to the facts in issue. 26. As per Sections 151 and 152 of the Evidence Act, the questions which are apparently indecent or scandalous or which appear to be intended to insult or annoy or are offensive in form, are forbidden. Such questions may be put either to shake the credit of witness or as relating to the facts in issue. If they are put merely to shake the credit of the witness, the court has complete dominion over them and to forbid them even though they may have some bearing on the questions before the court. But, if they relate to the facts in issue or are necessary to determine the facts in issue existed, the court has no jurisdiction to forbid them. The court cannot forbid indecent or scandalous questions, if they relate to the facts in issue. It is because what is relevant cannot be scandalous. 27. Having seen that though the ambit of cross-examination of a witness goes beyond his examination-in-chief, but there has to be relevancy of the questions as regard to the facts or to the creditworthiness of a witness. The counsels must exercise their right of cross examination in a reasonable manner. They have their obligations no less than their privileges. They have no right of unlimited arguments or examination of witnesses, but only so much as would be relevant and reasonably necessary in the particular matter. When a Judge exercises his discretion and disallows a question being irrelevant on any count, the cross examiner should accept the court's rulings without any demur or display of temper. The court is entitled to expect such like acceptance of a ruling on the part of the counsel. [See: R.K. Chandolia vs. CBI and others, W.P. (CRL.) No. 225 of 2012 decided on 11th April 2012 by the Delhi High Court]. 28. On the touchstone of Chapter X of the Evidence Act, it is his duty to monitor the cross-examination of the witness. The Supreme Court in the case of Makhan Lal Bangal vs. Manas Bhunia and others, [2001 AIR (SC) 490] held thus : "An election petition is not a dispute between the petitioner and respondent merely; the fate of the constituency is on trial. The Supreme Court in the case of Makhan Lal Bangal vs. Manas Bhunia and others, [2001 AIR (SC) 490] held thus : "An election petition is not a dispute between the petitioner and respondent merely; the fate of the constituency is on trial. A Judge presiding over the trial of an election petition, and any trial for the matter of that, needs to effectively control examination, cross-examination and re-examination of the witnesses so as to exclude such questions being put to the witnesses as the law does not permit and to relieve the witnesses from the need of answering such questions which they are not bound to answer. Power to disallow questions should be effectively exercised by reference to Sections 146, 148, 150, 151 and 152 of the Evidence Act by excluding improper and impermissible questions. The examination of the witnesses should not be protracted and the witness should not feel harassed. The cross-examiner must not be allowed to bully or take unfair advantage of the witness. Though the trials in India are adversarial, the power vesting in the court to ask any question to a witness at any time in the interest of justice gives the trial a little touch of its being inquisitorial. Witnesses attend the court to discharge the sacred duty of rendering aid to justice. They are entitled to be treated with respect and it is the judge who has to see that they feel confident in the court. In Ram Chander vs State of Haryana, this Court observed, "....... to be an effective instrument in dispensing justice, the presiding judge must cease to be a spectator and a mere recording machine. He must become a participant in the trial by evincing intelligent active interest....". An alert judge actively participating in court proceedings with a firm grip on oars enables the trial smoothly negotiating on shorter routes avoiding prolixity and expeditiously attaining the destination of just decision. The interest of the counsel for the parties in conducting the trial in such a way as to gain success for their respective clients is understandable but the obligation of the presiding judge to hold the proceedings so as to achieve the dual objective - search for truth and delivering justice expeditiously - cannot be subdued. Howsoever sensitive the subject matter of trial may be; the court room is no place of play for passions, emotions and surcharged enthusiasm". Howsoever sensitive the subject matter of trial may be; the court room is no place of play for passions, emotions and surcharged enthusiasm". 29. Therefore, the Court below was well within its powers and authority to disallow irrelevant questions, more particularly, when the details as regards the civil or criminal proceedings are already on record as noted above by the Trial Court in its impugned order. 30. I had an occasion to consider an identical issue in the case of Prashant Maheshbhai Pandya and others vs. State of Gujarat [Special Criminal Application No.4561 of 2015 decided on 22nd September 2015]. I may quote the relevant observations as under : “14. The principles of examination of witnesses are delineated under Chapter 10 of the Evidence Act, almost, with mathematical precision. A witness can be examined to establish a fact in issue or a relevant fact. These expression, in turn are defined under Section 3 of the Act. Under Section 136 of the Act, the trial Court is entitled to ascertain the purpose for which a particular witness is examined. It is only on being satisfied that the evidence of such witness would throw light on the facts in issue or the relevant fact, that he may be permitted to be examined. Section 138 of the Act incorporates certain important principles in the mater of examination of the witness in chief. It insist that the examination in chief and cross must relate to the relevant facts. The cross examination, however, is not restricted to the facts, which are testified in the chief examination. As long as it relates to the relevant facts, the cross-examination cannot be confined to any limits. 15. However, the essence of cross examination is that it is interrogation by the advocate of one party of the other party or his or her witness called by his adversary with the object either to obtain from such party/witness admissions favourably to his cause or to discredit him. Nobody likes to be cross examined and I suppose it is human tendency and yet cross examination is considered to be the most effective of all means of extracting the truth and exposing falsehood. Nobody likes to be cross examined and I suppose it is human tendency and yet cross examination is considered to be the most effective of all means of extracting the truth and exposing falsehood. It is stated in para 801 of the Halsbury's Laws of England, Third Edition, Volume 15 that the purpose of cross examination is that it is directed to (1) credibility of the witness; (2) the facts to which he has deposed in chief, including cross examiner's version thereof; and (3) the facts to which the witness has not deposed but to which the cross examiner thinks he is able to depose. It is also stated therein that the failure to cross examine a witness on some material part of his evidence, or at all, may be treated as acceptance of the truth of that part or the whole of his evidence. The object of cross examination is two fold and that is to weaken, qualify or destroy the case of the opponent; and to establish the party's own case by means of his opponent's witnesses (Phipson, 11th Ed p. 648). As per Powell, (9th Ed, p 532), the objects are to impeach the accuracy, credibility and general value of the evidence given in chief, to sift the facts already stated by the witness, to detect and expose discrepancies, or to elicit suppressed facts which will support the case of the cross-examining party. The exercise of this right is justly regarded as one of the most efficacious tests, which the law has devised for the discovery of truth. By means of it, the situation of the witness with respect to the parties and to the subject of litigation, his interest, his motives, his inclination and prejudices, his character, his means of obtaining a correct and certain knowledge of the facts to which he bears testimony, the manner in which he had used those means, his powers of discernment, memory and description are all fully investigated and ascertained and submitted to the consideration of the jury, (or the Court) who have an opportunity of observing his demeanor, and of determining the just value of his testimony. Considerable latitude is allowed in cross examination. It need not be confined to the facts elicited in examination in chief or to strictly relevant facts. Considerable latitude is allowed in cross examination. It need not be confined to the facts elicited in examination in chief or to strictly relevant facts. The accused is entitled to cross examination to elicit facts in support of his defence from the prosecution witnesses wholly unconnected with the examination in chief. The cross examining advocate can even undertake to show at some subsequent stage that questions apparently irrelevant are really relevant. Relevant facts in cross examination must necessarily have a wider meaning then the term when applied to examination in chief. For instance the facts though otherwise irrelevant may involve questions affecting the credit of the witness and such questions are permissible in cross examination. Cross-examination is not limited to the matters upon which the witness has already been examined in chief but extends to the whole case (See Sarkar on Evidence, 15th Edition page 2172). It must also not be forgotten that many a times the privilege of cross examination to credit is abused and this happens when the cross examiner allows himself to be a tool in the hands of unscrupulous litigant disrespecting his profession. 16. Under the scheme of the Indian Evidence Act, Chapter X deals with examination of witnesses and Section 137 gives a statutory right to the adverse party to cross-examine a witness examined-in-chief. Section 138 gives the order of examination of witnesses. After defining what is a leading question in Section 141, law permits such questions to be put while the witness is under the cross-examination. Section 146 indicates the lawful ambit and scope of such cross-examination inter alia, by pointing out that questions which test the veracity of a witness or which tend to discover who he is and what is his position in life, or which go to shake his credit by injuring his character, although the answer to such question might tend directly or indirectly to criminate him or might expose or tend directly or indirectly to expose him to a penalty or forfeiture, are within permissible precincts of that provision. Section 148 gives discretion to a Court to decide certain matters, as to whether or not a witness should be subjected compulsorily to answer, or whether, in its discretion, may proceed to warn the witness that he is not obliged to answer the question. Section 148 gives discretion to a Court to decide certain matters, as to whether or not a witness should be subjected compulsorily to answer, or whether, in its discretion, may proceed to warn the witness that he is not obliged to answer the question. The provisions of Section 148 open up by a qualifying clause that when such a question relates to a matter not relevant to a suit or proceeding, then the Court has discretion to decide as is indicated by the Section itself. It follows, therefore, that once a question, which is not relevant is put, the matter is within the discretion of the Court and it has to decide whether the witness has to be compelled to answer such a question or whether a warning should ensue that the witness is not obliged to answer the same. The decision of the Court must reach either of these two results. While exercising the discretion in this regard what matters should be taken into account are enumerated in clauses (1) to (4) of Section 148 and one of those is that such questions are proper if the same are of such a nature that the truth of the imputation conveyed by them would seriously affect the opinion of the Court as to the credibility of the witness on the matter to which he testifies. 17. Section 149 is a warning signal to the person putting the question and indicates ensuing liability. It also further points out how to work out the right of a cross-examination in such matters. It expressly states that, unless there are reasonable grounds for thinking that the imputation which is conveyed by these questions is well founded, questions should not be asked. Illustrations appended to the section lucidly illustrate the purpose of the provisions of Section 149. Section 150 is the penalty that may ensue against a reckless cross-examination if the Court was of the opinion that the questions were asked without reasonable grounds. 18. Section 151 gives power to the court to forbid questions on the ground that those are indecent or scandalous, subject, however to the exception that they relate to the facts in issue, or to matters necessary to be known in order to determine whether or not the facts in issue existed. 18. Section 151 gives power to the court to forbid questions on the ground that those are indecent or scandalous, subject, however to the exception that they relate to the facts in issue, or to matters necessary to be known in order to determine whether or not the facts in issue existed. In other words, indecent and scandalous questions can be put if they directly relate to the facts in issue and also if it is necessary to be known in order to determine whether or not the facts in issue existed. It has to be pointed out, therefore, that these exceptions are vital, and if in any given case the Court is satisfied that even an indecent or scandalous question may have a bearing upon a fact in issue, the same cannot be forbidden. If a question is merely intended to insult or annoy and is offensive in form, the court has power to forbid the same as is clear from Section 152. 19. Thus the whole scheme has to be worked out within the limits of the cross-examination primarily indicated by Sec. 146 of the Act. In certain matters the Court has to decide whether the witness should be compelled to answer or whether he should be warned that he is not obliged to answer. The liability of the person asking the question is indicated by Sections 149 and 150. The power to forbid asking of such questions is referable to Sections 151 and 152. After mapping out this scheme, the legislature has enacted Section 155 which deals with impeaching credit of witnesses and also speaks of modes how the same has to be done. Such credit can be impeached by the adverse party so also by the party who calls the witness with the leave of the court and amongst others, if permitted, by tendering evidence of persons to testify that the witness was believed by them to be unworthy of credit, or by tendering proof that the witness was bribed or had the offer of bribe or had received any other inducement to give evidence, or by proof of former statements inconsistent with any part of the evidence given by him and in case of a prosecutrix, by leading evidence of her immoral character. These provisions do in fact illustrate that the law permits, as a reasonable mode of defence, to put before the Court even further evidence so as to discredit a particular witness. Along with this the provisions of Section 146 permit questions which tend to shake the credit of a witness by injuring his character. Both these provisions will have to be considered together while deciding such matters. 20. The legislative intent has to be primarily found from the language employed in the enacting statute. The word 'credit' used in Sec. 146 is of a wide and varied connotation and has to be distinguished from the word 'character', though the latter may include the former. 'Credit' would take in belief, estimate of reputation, however, good character, and 'creditable' so construed would mean, honourable or trustworthy. The 'character' envisages a moral or ethical qualities of a person as a social being. Thus it is plain that the provisions of Section 146(3) permit a cross-examiner to put questions which will not only shake the credit of a witness, but which will also expose his ethical and moral behaviour which may ultimately weigh with the Court while evaluating or appreciating testimonial evidence. By its very nature questions on mala fides as opposed to bona fides, immorality as opposed to good morality, dishonesty as against honesty, falsehoods as against truthfulness, can all conceivably be put, provided there is necessity and foundation for the same. For further (sic) Section 155 expressly permits by indicating a mode and manner to bring in evidence upon the credit of a witness so as to impeach such testimony. Mere exercise by the media indicated by Section 155, without asking questions permissible under Section 146, may in a given case loose all its effectiveness and would be futile. What could therefore be brought before the Court under Section 155 can surely be put to the witness - nay, must be put while he is giving evidence in a cause. Looking to this interwoven scheme of statutory provisions, it is plain that under the Indian law, "credit" including "the character" of a witness, is a relevant factor to be taken into account by every Court administering justice. Looking to this interwoven scheme of statutory provisions, it is plain that under the Indian law, "credit" including "the character" of a witness, is a relevant factor to be taken into account by every Court administering justice. However such being the amplitude, of necessity, limitations may arise because of the issues that may be involved in a particular given controversy and further the questions being merely asked to insult or annoy a witness or the question is by itself indecent or scandalous. In such offensive only the Court is empowered to protect the witness by the manner indicated by Section 148, Section 150 or even putting an embargo under Section 151 or 152 of the Act. Till conditions of these provisions are not satisfied the matter is at large and witness must stand all the test before his word can be raised to pedestal of the proof.” 31. Let me now look into the two decisions on which strong reliance has been placed on behalf of the applicant accused. In the case of Guntaka Hussenaiah (supra), a learned Single Judge of the Andhra Pradesh High Court (as His Lordship then was) observed in para 7 as under : “7. Nor are there merits in the second point either. The learned Judge discredited the evidence of the plaintiff on the ground that he filed similar suits with false claims and that they were all dismissed and also on the ground that his name figures in the K.D. list maintained by the police. To put it differently, the learned Judge depended upon the bad antecedents of the plaintiff to discredit him. It is argued that the learned Judge contravened the provisions of S. 52, Evidence Act. Section 52 says : "In civil cases, the fact that the character of any person concerned is such as to render probable or improbable any conduct imputed to him is irrelevant except in so far as such character appears from facts otherwise relevant." This section deals with the relevancy of character evidence in civil cases. The character of a party to a civil suit cannot be relevant to the decision of an issue arising in that suit. The character of a party to a civil suit cannot be relevant to the decision of an issue arising in that suit. When a question arises whether a contract was entered into between the parties, or whether it is supported by consideration, the character of the plaintiff or defendant is certainly irrelevant to the issue whether, there was a contract or whether it was supported by consideration. But there may be cases in which the character of a person may be relevant for the disposal of a suit, such as actions for seduction, etc., but this section has no bearing on a case where the veracity of a witness is in question. This is governed by S. 146 which says that when a witness is cross-examined, he may, in addition to the questions hereinbefore referred to, be asked any questions which tend (1) to test his veracity, (2) to discover who he is and what is his position in life or (3) to shake his credit, by injuring his character, although the answer to such questions might tend directly or indirectly to criminate him or might expose or tend directly or indirectly to expose him to a penalty or forfeiture. Under this section a witness can be cross-examined to shake his credit by injuring his character. Character evidence may not be relevant to decide an issue in a case, but cross-examining counsel is given liberty under this section for the purpose of shaking the credit of a witness to put questions to him affecting his character. But the learned Counsel says that the provisions of S. 155 of the Act relate to the mode of impeaching the credit of a witness, that the provisions of that section are exceptions to S. 52 and that except in so far as those provisions permitted, character evidence is not admissible. The obvious answer is that Ss. 52 and 155 deal with different matters. Section 52 prohibits character evidence in regard to the subject matter of the suit whereas S. 155 prescribes the manner of impeaching the credit of a witness. Section 155 cannot, therefore, be construed as an exception to S. 52. Further, Ss. 155 and 146 are not in conflict with each other. Sections 138, 140, 145, 148 and 154 provide for impeaching the credit of a witness by cross-examination. Section 155 cannot, therefore, be construed as an exception to S. 52. Further, Ss. 155 and 146 are not in conflict with each other. Sections 138, 140, 145, 148 and 154 provide for impeaching the credit of a witness by cross-examination. In particular S. 146 permits questions injuring the character of a witness to be put to him in cross-examination. Section 155 lays down a different method of discrediting a witness by allowing independent evidence to be adduced. I cannot, therefore, agree with the learned counsel that S. 155 is an exception to S. 52 and that, apart from S. 155, his character cannot be impeached. If so, it follows that the learned Subordinate Judge was certainly justified in discrediting the plaintiff by answers elicited in the cross-examination to the effect that his antecedents were bad. Further, in this case, apart from P.W. 1 who is obviously an interested witness, the plaintiff has examined two more witnesses. The learned Judge, for good reasons, disbelieved this evidence. I cannot, therefore, hold that the judgment of the learned Subordinate is vitiated by any error of law.” 32. There cannot be any debate on the principles of law explained in the above referred decision, but having regard to the facts of the present case, the dictum, as laid down in the above referred decision of the Andhra Pradesh High Court, does not help the applicant accused herein in any manner. 33. In the case of Surendran (supra), a learned Single Judge of the Kerala High Court (as His Lordship then was) observed in para 8 as under : “The right to cross-examine a witness with reference to his previous statement can be traced to Ss.145, 146 and 155(3) of the Indian Evidence Act. S.145 says that a witness may be cross-examined as to previous statements made by him in writing or reduced to writing. This is the general right of a cross-examiner. The only restriction provided is that the previous statement must be relevant to the matters in question. Section also prescribes the procedure to be followed if the cross-examiner wants to contradict the witness as to the previous statements. S.146 empowers a cross-examiner is entitled to put any question to test the veracity of the witness. Of course, the vast scope covered by S.146 is subject to the Court's power to control such questions as provided in Ss. Section also prescribes the procedure to be followed if the cross-examiner wants to contradict the witness as to the previous statements. S.146 empowers a cross-examiner is entitled to put any question to test the veracity of the witness. Of course, the vast scope covered by S.146 is subject to the Court's power to control such questions as provided in Ss. 148 to 152 of the Evidence Act. Subject to such control the cross-examiner is entitled to put any question to test the veracity of the testimony of the witness. S.155(3) of the Evidence Act says that any former statement of a witness which is inconsistent with his evidence can be proved for impeaching the credit of the witness. S. 155(3) of the Evidence Act applies to any previous statement whether oral or in writing. But S. 145 applies only to previous statement in writing. Thus, Ss. 145, 146 and 155(3) of the Evidence Act are complementary to each other. When they are read together, a cross-examiner cannot be restricted from putting questions except to the extent indicated in Ss.148 to 152 of the Evidence Act. This general right of the cross-examiner has to be borne in mind when deciding the present question.” 34. Again, the dictum, as laid down in the above noted decision of the Kerala High Court, does not help the applicant accused in the present case having regard to the peculiar facts. 35. In the overall view of the mater, I have reached to the conclusion that the Trial Judge is the best Judge to decide the relevancy of the questions put up by the defence counsel during the cross-examination of a witness and this Court should not, in exercise of its extraordinary jurisdiction under Article 226 or 227 of the Constitution of India or the inherent powers under Section 482 of the Cr.P.C., interfere on such discretion exercised by the Trial Judge unless the same was manifestly illegal or perverse or has resulted in a serious miscarriage of justice. The case on hand appears to be nothing, but an abuse of the process of law. The Trial Court has been harassed in all respect. The defence counsel went to the extent of even filing an application for transfer of the criminal case. An application for transfer of a case has very serious implications so far as a Judicial Officer is concerned. The Trial Court has been harassed in all respect. The defence counsel went to the extent of even filing an application for transfer of the criminal case. An application for transfer of a case has very serious implications so far as a Judicial Officer is concerned. It also appears that time of the Court was wasted. The impugned order speaks for itself. 36. For the foregoing result, this application fails and is hereby rejected. The Trial Court shall now proceed further with the matter and see to it that the criminal case is disposed of with the judgment at the earliest. As noted above, the criminal case is of the year 1985.