High Court · 2009

IN THE HIGH COURT OF JUDICATURE AT MADRASDated: 30.04.2009CoramThe Honourable Mr. Justice S.TAMILVANANCrl. R.C.No.819 of 2007and M.P.No.1 of 2007 and M.P.No.1 of 20091. State Rep. By SPE/CBI/ECW/Chennai .. Petitioner/Complainantvs.1. M.Gopalakrishnan2. S.Arunachalam3. N.Chandrasekhara Rao4. B.Subramanian5. A.V.Shanmuga Sundaram6. U.Kumarasamy7. V.Srinivasan8. K.Subramanian9. N.Ramakrishnan10. V.Seetharaman11. M.Varadharajulu12. S.P.Vairavan13. K.Sai Jaganathan14. M/s. Sathyam Foods (P) Ltd., 30, HIG Flats, Nandanam Chennai – 35, Rep. By Partner, Directors H.Arulmanalan and R.Palaniappan https://hcservices.ecourts.gov.in/hcservices/

15. H.Arulmanalan16. R.Palaniappan .. Respondents/AccusedPRAYER :Revision Petition filed under Sections 397 & 401 ofCriminal Procedure Code to call for the records relating to thecase in C.C.No.17 of 2001 on the file of the Principal SpecialJudge for C.B.I Cases, Chennai and set aside the order of thetrial court, dated 16.03.2007 made in Crl.M.P.No.391 of 2006.For petitioner :Mr.N.ChandrasekaranSpecial Public Prosecutor for CBI CasesFor respondents :Mr. Sundar Mohan for R1Mr.N.Chandrasekara RaoParty-in-person for R3O R D E RThis Criminal Revision Petition has been preferred againstthe against the Order, dated 16.03.2007 made in Crl.M.P.No.391of 2006 in C.C.No.17 of 2001 on the file of the PrincipalSpecial Judge for CBI Cases, Chennai.2. The case has been filed against the respondents underSections 420 r/w 120 (B), 409, 467, 468 IPC and Section 13 (2)r/w 13 (1) (d) of Prevention of Corruption Act. It is not indispute that it is a part-heard case, pending before the courtbelow. One Mr.V.Ramanan, who was the General Manager, IndianBank, retired in the year 2003 was examined as P.W.2 before thecourt below. According to the petitioner, the said witness,P.W.2 had deposed his evidence in chief, supporting theprosecution case, however, turned hostile, while he was cross-examined by the third respondent / A3. Since P.W.2 deposedevidence, during cross-examination against the prosecution caseand in favour of the third respondent / A3, learned PublicProsecutor requested the court below, to treat him hostile, butthe request was negatived by the trial court.3. It is seen that the revision petitioner herein hadfiled a petition before the court below seeking permission totreat the said prosecution witness (P.W.2) as a hostilewitness, since he did not support the prosecution case and tocross-examine him, but that was negatived unreasonably by thecourt below, hence, the revision has been preferred before thisCourt.4. Learned Special Public Prosecutor further submittedthat after adducing evidence in chief, as per the prosecution https://hcservices.ecourts.gov.in/hcservices/ case, P.W.2, being a retired officer of the Bank, deliberatelysupported the respondents / A3, with an ulterior motive, forreasons best known to him. Therefore, the said witness couldhave been treated by the court below only as a hostile witnessand permitted the petitioner / complainant to cross-examine thewitness. However, the court below did not permit the petitionerto treat him hostile and cross-exam the witness (P.W.2).Learned Special Public Prosecutor further contended that it isa settled proposition of law that the prosecution witness whodeposed evidence against the prosecution case should have beentreated as hostile witness, as requested by the prosecution,however, the court below refused to treat the witness hostile,though he had voluntarily deposed evidence against theprosecution case and supported the third respondent / A3 in hiscross-examination. 5. Mr. Sundar Mohan, learned counsel appearing for R1submitted that as per the impugned order, P.W.2 has notexhibited any element of hostility and therefore, there was nonecessity to treat him hostile by the prosecution. Learnedcounsel appearing for R1 and also R3, who appeared party-in-person, drew the attention of this Court to paragraph number 18and other paragraphs of the impugned order. Paragraph 18 of theorders reads as follows :"In view of the above discussion it is heldthat P.W.2 has not exhibited any element ofhostility. As already stated the answersmentioned in the petition given by P.W.2 inthe cross-examination were on the basis ofthe statement of LW 58 and furtherstatement of LW 21 and certain otherrecords which have not been put up forperusal to P.W.2 at the time of issue ofEx.P.7 sanction order. The reasons statedin the petition are not convicting. Hence,this petition is dismissed."They further contended that certain documents were not shown toP.W.2 at the time of passing the sanction order. After perusingthe document, he deposed evidence against the prosecution caseand therefore, according to the respondents, P.W.2 need not betreated as hostile witness to be cross-examined by thepetitioner herein.6. Per contra, Learned Special Public Prosecutor drew theattention of this Court to paragraph number 14 and otherportions of the impugned order. It is seen that P.W.2 answeredin his cross-examination as follows : https://hcservices.ecourts.gov.in/hcservices/ "I agree that the accused N.ChandrasekaraRao is a knowledgeable person with honestyand integrity."7. In Ex.P.7, sanction order, as held by the court below,nothing is mentioned about the knowledge of A3. The Court belowhas given a finding in paragraph number 14 of the impugnedorder as follows :"In Ex.P.7, nothing is mentioned about theknowledge of A3. Likewise, it is not statedin Ex.P.7 that A3 is a dishonest person andenjoys bad reputation. When such being thecase, the evidence given by P.W.2 that A3is a knowledgeable person with honesty andintegrity cannot be taken as somethingagainst what is stated in Ex.P.7, thesanction order."According to the learned Special Public Prosecutor, theaforesaid finding of the court below is totally self-contradictory. The trial Court has come to a conclusion thatP.W.2 had answered in his cross-examination, based on therecords and statement of witnesses, though he had not answeredanything, based on the document, that was perused by him beforethe cross-examination to depose that the third respondent / A3was a knowledgeable person with honesty and integrity. LearnedSpecial Public Prosecutor further submitted that P.W.2, himselfwas the sanctioning authority for the prosecution of the case,but with a deliberate intention, he has supported the thirdrespondent / A3, totally contrary to his evidence in the chief-examination, with a wrong notion that he would not be treatedhostile, if he depose evidence, in support of the thirdrespondent / A3 and against the prosecution case, during hiscross-examination. As P.W.2 deposed evidence against his ownorder of sanction, under Ex.P.7, it is the duty of the revisionpetitioner to plead before the court below, for treating him ahostile witness, however, the court below rejected the vitallegal plea, raised by the Special Public Prosecutor.8. In the chief-examination, P.W.2 deposed that he hadaccorded sanction order for the prosecution of N.ChandrasekaraRao, Scale-V Officer (R3), V.Srinivasan, Scale-IV Officer (R7)and Kumarasamy, Scale-III Officer (R6) and the sanction orderwas issued by him on 02.03.2001 under Ex.P.7 (7 sheets). He hasfurther stated in the chief, that he had perused the documentsrelevant to the prosecution case, copy of the FIR,investigation report, statement of witnesses and expertdocuments etc., applied his mind over the same and havingsatisfied that a prima facie case has been made out against the https://hcservices.ecourts.gov.in/hcservices/ aforesaid three officers, he accorded the sanction, underEx.P.7. It is also seen that P.W.2 has deposed a clear evidencein his chief, supporting the prosecution case, being thedisciplinary authority, he has accorded sanction for theprosecution against the respondents 3, 6 and 7 under Ex.P.7. Inthe chief examination, he has categorically stated that he hadperused the document relevant to the case, copy of the FIR,investigation report, statement of witnesses and expertdocuments etc., applied his mind over the same and havingsatisfied that prima facie case has been made out against thethird respondent / A3 and other officers, he issued thesanction order, Ex.P.7. 9. In the cross-examination by R3 (A3), the prosecutionwitness (P.W.2) has stated as follows "I agree that the accusedMr.Chandrasekara Rao is a knowledgeable person with honesty andintegrity" and has further stated in his cross-examination thatthe allegation of the prosecution stating that the thirdrespondent / A3 had facilitated the release of the credits aswrong. He has further deposed that A3 had not abused hisauthority for passing any wrongful loss to the Indian Bank orwrongful gain to any one including himself. He has furtherstated in the cross-examination that It is true that A3 was nota member of any conspiracy and there was no need for theprosecution of A3 either under Prevention of Corruption Act orunder IPC. P.W.2, was the authority, who accorded sanction forprosecuting the third respondent / A3, having supported theprosecution case in the chief examination, saying that he hadperused the copy of the FIR statements of the prosecutionwitnesses and other relevant records, satisfied with the same,accorded sanction for the prosecution of the third respondent /A3 and others, strangely in his cross-examination, changed hisversion and stated that the third respondent / A3 is aknowledgeable person, with honesty and integrity. There is nospecial circumstance or materials available for P.W.2 tochange his version during the cross-examination.9. Learned Special Public Prosecutor in support of hiscontention relied on the following decisions:1. Sat Paul vs. Delhi Administration, AIR 1976 SC 2942. R.K.Dey vs. State of Orissa, AIR 1977 SC 1703. G.S.Bakshi vs. State (Delhi Admn.), AIR 1979 SC 5694. Dahyabhai vs. State of Gujarat, AIR 1964 SC 15635. K.Anbazhagan vs. Superintendent of Police, AIR 2004 SC524 https://hcservices.ecourts.gov.in/hcservices/

10. The third respondent who appeared party-in-personsubmitted that there is no error or infirmity in the impugnedorder passed by the court below and also cited the followingdecisions, in support of his contention. 1. State rep. By ADSP, CBCID vs. Tmt.Indirakumari & Ors,2003 (3) CTC 2912. P.Ramachandra Rao vs. State of Karnataka, AIR 2002 SC18563. Shri Rabindra Kumar Dey vs. State of Orissa, AIR 1977SC 1704. V.Venkata Subbarao vs. State, rep by Inspector ofPolice, AP, AIR 2007 SC 489The aforesaid decisions cited by the third respondent are notdirectly applicable to the fact and circumstance of the case.11. In Sat Paul vs. Delhi Administration, reported in AIR1976 SC 294, the Hon'ble Supreme Court has held that thediscretion conferred by Section 154 on the Court, isunqualified and untrammelled and it is to be liberallyexercised considering the witness's demeanour, temper,attitude, bearing or the tenor and tendency of his answers, orfrom a perusal of his previous inconsistent statement orotherwise, thinks that the grant of such permission isexpedient to extract the truth and to do justice. It has beenmade clear by the Hon'ble Apex Court that the grant of suchpermission to treat the witness hostile and permitting tocross-examine the witness is expedient to extract the truth andto do justice. The grant of such permission does not amount toan adjudication by the court as to the veracity of the witnessand under Section 145 of Evidence Act, 1872 and the evidence ofthe prosecution witness cannot be discarded as a whole, basedon the evidence adduced in the cross-examination.12. The Hon'ble Supreme Court by a Three Judge Bench inR.K.Dey vs. State of Orissa reported in AIR 1977 SC 170 hasruled that Section 154 of Evidence Act, confers a judicialdiscretion on the Court, to permit cross-examination and doesnot contain any conditions or principles which may govern theexercise of such discretion. It is, however, well-settled thatthe discretion must be judiciously and properly exercised inthe interests of justice and cross-examine the witness.13. In G.S.Bakshi vs. State (Delhi Admn.) reported in AIR1979 SC 569, the Hon'ble Apex Court has held that under Section154 of Evidence Act, when can a prosecution witness be declaredto be hostile. As per the decision, when a prosecution witnessturns hostile by stating something, which is destructive of the https://hcservices.ecourts.gov.in/hcservices/ prosecution case, the prosecution is entitled to plead that thewitness be treated as hostile. In such case, the trial Courtmust allow the Public Prosecutor to treat the witness ashostile and to cross-examine the witness.14. In K.Anbazhagan vs. Superintendent of Police, reportedin AIR 2004 SC 524, at page number 536, it has been held asfollows:"The Public Prosecutor will be at libertyto apply that the witnesses who have beenrecalled and cross-examined by the accusedand who have resiled from their previousstatement, may be again recalled. ThePublic Prosecutor would be at liberty toapply to the Court to have these witnessesdeclared hostile and to seek permission tocross-examine them. Any such application ifmade to the Special Court shall be allowed.The Public Prosecutor will also be atliberty to apply that action in perjury tobe taken against some or all suchwitnesses. Any such application/s will beundoubtedly considered on its merit/s."15. Three Judge Bench of the Hon'ble Apex Court inDahyabai vs. State of Gujarat, reported in AIR 1964 SC 1563 atpage number 1569 has held that Section 154 does not in terms,or by necessary implication confine the exercise of the powerby the court before the examination-in-chief is concluded or toany particular stage of the examination of the witness. It iswide in scope and the discretion is entirely left to the courtto exercise the power when the circumstances demand and toconfine this power to the stage of examination-in-chief is tomake it ineffective in practice. 16. It has been made clear by the Hon'ble Apex Court thata clever witness in his examination-in-chief faithfullyconforms to what he stated earlier to the police or in thecommitting court, but in the cross-examination introducesstatements in a subtle way contradicting in effect what hestated in the examination-in-chief. If his design is obvious,we do not see why the court cannot, during the course of hiscross-examination, (sic-re-examination) permit the personcalling him as a witness to put questions to him which might beput in cross-examination by the adverse party. To confine theoperation of S.154 of the Evidence Act to a particular stage inthe examination of a witness is to read words in the sectionwhich are not there and that if a party calling a witness ispermitted to put such questions to the witness after he has https://hcservices.ecourts.gov.in/hcservices/ been cross-examined by the adverse party, the adverse partywill not have any opportunity to further cross-examine thewitness, on the answers elicited by putting such questions. Insuch an event the court certainly, in exercise of itsdiscretion, will permit the adverse party to cross-examine thewitness on the answers elicited by such questions. The rulingof the Hon'ble Supreme Court in the above referred decision issquarely applicable to the facts and circumstances of thisrevision petition.17. On perusal of catena of decisions rendered by theHon'ble Apex Court, it is clear that at any stage of theexamination of the witness, the court can apply its discretionjudiciously, treat the witness hostile and permit the party tocross-examine the witness. It has been made clear that it isonly the judicial discretion of the court, in order to meet theends of justice. It need not be confined to chief examinationof the witness alone.18. In the instant case, P.W.2, who was the senior officerof the Bank and also the sanctioning authority to initiatecriminal proceeding against the respondent, has categoricallydeposed in his chief, that he had gone through the copy of theFIR, all relevant material papers, statement of witnesses andafter having satisfied, accorded sanction for the prosecutionof the third respondent (A3), however, cleverly he changed hisversion in the cross-examination stating that the said accusedis a knowledgeable person with honesty and integrity and thatthere was no possibility for him to have collusion with theother accused to commit the offence. There is no satisfactoryreason for the said witness adducing directly a contradictoryevidence, supporting the third respondent / A3, while he wascross-examined by the said accused.19. Considering the materials available on record, I am ofthe view that there is no change of circumstance available forP.W.2, to adduce such hostile evidence during his cross-examination. P.W.2, being the sanctioning authority, for theprosecution, as contended by the learned Special PublicProsecutor, has deliberately supported the third respondent /A3 against his own order, whereby he had accorded sanction andthe evidence adduced in his chief examination. Had his versionin the cross-examination been true, there could be no necessityfor him to accord sanction to prosecute the third respondent /A3. His evidence in the chief shows that he had perused thecopy of the FIR, statement of witnesses and other relevantmaterials and having satisfied himself, accorded sanction.However, in the cross-examination, without any basis, hechanged his version, for the reasons best known to him, which https://hcservices.ecourts.gov.in/hcservices/ cannot be justified. In such circumstances, as contended by thelearned Special Public Prosecutor, I am of the view that theCourt below could have exercised its discretion judiciously,treated him hostile, whereby permitting the Special PublicProsecutor appearing for the petitioner to cross-exam thewitness. 20. Considering the facts and circumstances, it is a clearerror apparent on the part of the Court below in overlookingthe legal position, based on the material facts available onrecord. The court below has failed in exercising its discretionjudiciously. Hence, I am of the view that this CriminalRevision Petition has to be allowed and the order passed by theCourt below has to be set aside, permitting the revisionpetitioner to treat P.W.2 hostile and to cross-examine thewitness.21. In the result, this Criminal Revision Petition isallowed and the impugned order, dated 16.03.2007 passed by theCourt below in Crl.M.P.No.391 of 2006 is set aside, holdingthat the petitioner / complainant is entitled to treat thewitness hostile and cross-examine him with reference to thehostile portion of evidence adduced by him and further, theCourt below is directed to dispose the case, according to law,uninfluenced by the order of this Court, within a period of sixmonths from the date of receipt of a copy of this order.Consequently, connected miscellaneous petitions are closed. tsvnSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1. The Principal Special Judge for C.B.I. Cases Chennai.2. The Public Prosecutor High Court, Madras.+ 1 cc to Mr. N. Chandrasekharan Rao Party in person SRno.19661BS(CO)SR/9.6.2009 Order in Crl.R.C.No.819 of 2007