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In the High Court of Bombay at Goa
THE HONOURABLE MR. JUSTICE N.A. BRITTO
Adv. Aires Rodrigues
Versus
Shri Subodh Kantak & Another
Decided on : 28-08-2009
Criminal Writ Petition No.37 of 2009
Evidence Act, 1872 - Section 137 - Cross-examination - Importance thereof - Held - 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 - No body likes to be cross-examined - It is human tendency yet cross-examination is considered to be most effective of all means of extracting truth and exposing falsehood.
INDIAN PENAL CODE, 1860 - Section 499 - Reputation - Meaning thereof - Held - Reputation, character and deposition are words which are not free from difficulty, in their meanings - Reputation is what the neighbours and others say a person is - It is a composite hearsay and is the opinion of community of person - It is form of hearsay and is admitted on ground of necessity.
INDIAN PENAL CODE, 1860 - Section 499/500 - Defamation - Complainant was Advocate General - Accused asked few questions from complainant as to his fees - Trial Court disallowed the same as irrelevant - Charges imputed upon complainant by accused of double billing and forged billing - Held - Questions on fees of complainant were relevant questions since according to accused the complainant having been paid highest fees in State of Goa had indulged in double or excessive billing to the State Government and this was relevant question to be asked pertaining to the reputed character of complainant - Complainant stated that accused had called in question his competence as Advocate General by making false allegations on unsubstantial facts - Accused was certainly entitled to ask the third question with a view to substantiate the imputation made by accused that the complainant had disgraced the office of Advocate General with a view to bring his case under first exception, as accused is entitled to prove his case not only on his own evidence but also by seeking admissions favourable to his defence, from the complainant - All questions asked were intended to bring the case of accused under exceptions - None of these questions could be said to be irrelevant or indecent.
INDIAN PENAL CODE, 1860 - Sections 500 and 499 - Evidence Act 1872, Sections 3(e), 52 and 55 Explanation - Rejection of questions - Defamation Complaint from Advocate Aeneral of Goa - Accused called AG as cheater - Various foolish questions asked by accused from AG - Questions disallowed as not relevant - Section 499 of IPC pertains to assault on reputation of a person intending to harm - Section has exceptions - Evidence Act Section 146 does not allow unbridled cross-examination of witness to assail his character except in cases it is necessary - Court not agree to accept that questions asked were irrelevant - Indecent or scandalous - Petition succeeds - Order disallowing questions set aside. - Section 146(3) of the Evidence Act permits crossexaminer 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. What could be brought before the Court under Section 155, can surely be put to the witness. "Credit" including "character" of a witness is a relevant factor to be taken into account by the Court. Indecent and scandalous question 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. No amount of challenge to the veracity of the complainant’s evidence or to the credibility of his evidence would make even a of difference in the ultimate inevitable conclusion that the said statements are patently defamatory. Cross-examining the complainant on the question of the defamatory character of the statements, is therefore, wholly without any purpose. The Court also observed that the criminal law looks down upon the act of washing dirty linen of respectable persons in the public. Every person has got his own right of privacy, to his reputation and to the protection of his public image.
It is too early in the day to contend that the accused should confine his cross-examination to the first or second exception to Section 499, IPC. It is a choice of the accused as to under which exception he should set up his case, though the accused has made more than clear that he is sheltered by first exception. As stated by the Apex Court in Sewakram Sobhani v. R.K. Karanjiya, 1981 DGLS (soft) 290 : 1981 DGLS (Cri) soft 121 : AIR 1981 SC 1514 the questions of "public good" and "good faith" etc., (see first and second exception of Section 499) are questions of facts to be decided after the regular trial is held and cannot be answered at a stage when even the accused has not been examined.
The accused was certainly entitled to ask the third question with a view to substantiate the imputation made by the accused that the complainant had disgraced the office of Advocate-General with a view to bring his case under first exception, as the accused is entitled to prove his case not only on his own evidence but also by seeking admissions favourable to his defence, from the complainant. All questions asked were intended to bring the case of the accused under the exceptions.
Rule. By consent heard forthwith.
1. This petition has been filed by the accused who is facing trial under section 499/500 I.P.C and is directed against the orders of the Learned J.M.F.C disallowing three questions as irrelevant. When grammatically corrected, they are as follows:-
1. Is it not true that amongst the constitutional functionaries of State of Goa as well as the Executives of the State Government you are the highest paid Officer of the Government, per month?
2. Can you name any officer of the Government of Goa by designation who draws a sum equivalent to the average monthly remuneration paid to you?
3. Is it true that the Bombay High Court at Goa on various occasions expressed concern as to your conduct and performance as the Advocate General?
2. The complainant is the Advocate General of the State of Goa and the accused is practicing Advocate, and though both ought to have been at the Bar and appearing for their clients, they have chosen, either by choice or compulsion to be in the witness box and the dock, respectively.
3. The complainant claims that he s in legal practice from August, 1987 and became Advocate General from 11.02.05 to 5.3.05 and again from 15.6.05 and continues till date. The complaint is based on certain statements allegedly made by the accused at a press conference held on 29.3.08 and which were reported on Marathi Daily “Gomantak” dated 30.3.08 and when translated read as follows:-
“The Governor S.C. Jamir in public interest should immediately dismiss Subodh Kantak who has shamed the Constitutional post of the Advocate General.
Inquiry should be conducted into the bills submitted by Mr. Kantak and extra money paid to him should be recovered.
Shri Kantak is paid Rs. 8000/-per day per case even if the case is adjourned at his request”.
4. It is not necessary for the purpose of this petition to see how the statements were reported on the other dailies namely “Tarun Bharat” and “Goa Dhoot”, as mentioned in paragraphs 25 and 26 of the complaint. The case of the complainant is that the said statements were made by the accused as spokesperson of an organisation called “Utt Goenkara” which has no legal status and no legal entity and the said statements are defamatory, false and made deliberately in bad faith and with intention to malign the reputation of the complainant and have been made recklessly without exercising any responsibility or care which the accused as an advocate was bound to do. According to the complainant, the gist of the defamatory statements made by the accused is that the complainant as Advocate General has done double or excessive billing to the State Government in cases in which he appeared before the Hon'ble High Court and has disgraced the office of Advocate General.
5. The first question came to be rejected by the Learned trial Court observing that the complaint was filed alleging that the accused had defamed the complainant for cheating the State by double and excessive billing and thereby degrading the office of the Advocate General and had looted and raped the Goa exchequer and as such the fees in general of the Advocate General of Goa are not required to be inquired into.
6. The second question was disallowed with similar observation to the effect that the fees paid in general to the Advocate General of Goa were not in issue in this case. Further, the Learned Magistrate directed the accused not to ask any questions pertaining to the fees otherwise paid to the Advocate General of Goa; liberty was given to the accused to ask questions to the complainant as regards excessive and double billing.
7. The third question was objected because according to the complainant it was meant to annoy and scandalise the complainant. It was disposed off by detailed Order dated 15.6.2009. The Learned Magistrate after referring to various Judgments and particularly to the case of Govardhansing Raghuvanshi V/s. Chandanmal {1982 (1) Bom C.R. 519} came to the conclusion that the gen
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