IMPORTANT POINT
When a witness is not able to appear for cross-examination, he can be cross-examined through a Commissioner.

Judgment :

Delay condoned.

Leave granted.

We have heard learned counsel for the parties.

The prosecution against the respondent herein was initiated in the year 1987. The Investigating Officer Bipin Behari Mahapatra was examination-in-Chief on 1.9.1999. Unfortunately, on that date he could not be cross examined as respondent herein had filed two Criminal Miscellaneous Applications before the High Court although the learned Special Judge proceeded on the basis that the cross examination would be treated to have been declined. He was also present in Court on 15.1.2003 and 7.8.2003. By an Order dated 7.8.2003, however, on an application filed by the defence, the said Bipin Behari Mahapatra was recalled for cross examination. The matter was adjourned to 12.9.2003 on which date he was directed to remain present.

It however, appears that although the matter for further hearing was fixed from 12.9.2003 till 18.8.2006 no prosecution witness including the said investigating officer was present in the Court. The learned Special Judge went on issuing summons for his appearance so that he could be cross examined by the defence. Only on 18.8.2006, the learned Courts attention was drawn on an endorsement to the summons that he would not be able to attend the Court due to his illness. On and about 8.1.2007, an application was filed by the special Public Prosecutor to exonerate Mr. Mohapatra from cross examination on the ground of his illness. By reason of his order dated 24.3.2007 the learned Special Judge, however, directed as under: -

"From the aforesaid circumstances, it is thus seen that the defence did not take steps for cross-examination of P.W.9 on closure of this evidence in Chief on 10.9.1999. Vigilance took adjournment to procure attendance of P.W.9 on the ground of his illness and ultimately report is received that P.W.9 being aged 75 years due to prolong illness is not in a position to move and understand things having lost memory. No doubt it is necessary to cross examine the witness to assess his veracity and without cross examine the defence looses his valuable rights. But in the present case when P.W.9

due to old age and prolonged illness has lost his memory and unable to understand things no fruitful purpose would be served to insist for his attendance or to depute commission for his cross-examination in a case of this nature. Hence it is needless to insist upon the attendance of P.W.9 for his cross examination. However, the veracity of his evidence in chief shall be assessed with reference to other materials on record during final argument of the case. Accordingly, the petition filed on behalf of Special

P.P. Vigilance is disposed of."

The respondent filed an application under Section 482 of the Criminal Procedure Code there against before the High Court. The High Court, while relying upon a decision of this Court in Gopal Saran versus Satyanarayan reported in 1989 (3) SCC 56 held as under: -

"In view of what has been decided in the above reported cases, it is clear that when a witness does not make himself available for being cross-examined after his examination-in-Chief, it will be difficult on the part of a Court to rely on his evidence in examination-in-Chief. The purpose of cross-examination of a witness is to test the veracity of the statement made by a witness in his examination-in-Chief and where a witness is not cross examined, for his non availability it will be unsafe to reply on examination in chief of such a witness."

Mr. Radha Shyam Jena, learned counsel appearing on behalf of the appellant-State submits that keeping in view the fact that P.W.9 was available for cross examination and the defence had been given ample opportunity to cross examine him. Section 33 of the Indian Evidence Act, 1872 will be applicable. It was urged that the decision of this Court in Gopal Saran (supra) is not applicable to the facts and circumstances of this case as this Court was dealing therewith a civil matter.

Mr. Shibashish Misra,