The judge has the duty to forbid questions intended to annoy the witness and has the authority to control cross-examination to prevent harassment or annoyance to the witness.

M.L. MEHTA, J:

1. The present petition challenges the order of the Ld. Special Judge dated 12.01.2012, disallowing certain questions to be put to the prosecution witness PW 12 , during cross-examination.

2. The facts necessitating the disposal of the present petition are that, the charge sheet was filed against petitioner on 02.04.2011. Thereafter the Ld. Special Judge was pleased to frame charges against the petitioner vide order dated 22.10.2011 under Section 13(2) r/w Section 13(1)(d) PC Act r/w Section 120-B IPC, Section 120-B r/w 409/420/468/471 IPC, Section 7 or Section 11 r/w Section 12 PC Act. Thereafter, the prosecution witnesses were summoned for examination. During the cross-examination of PW 12 Tarun Das, certain questions asked by the petitioner’s counsel were disallowed on the premise of these being “irrelevant”. The two questions which were disallowed by the Special Judge were, “Do you have a mobile phone” and “Do you pay service tax on the phone bill of your mobile phone”. The petitioner has preferred the present petition, challenging the order of the Ld. Special Judge dated 12.01.2012 disallowing these questions.

3. The learned counsel for the petitioner submitted that the purpose of asking those questions were, to prove that the Government was earning revenue on mobile telephony through Service Tax during the tenure of co-accused A. Raja as Telecom Minister. Further it was also his intention to show that the said prosecution witness was not aware that “Service Tax” was levied on mobile telephony. It is further submitted that the Ld. Special Judge cannot deprive the defense counsel of his right of cross-examination in view of sections 146, 148 and 151 of the Evidence Act, and cannot overrule questions put up by the defense counsel as “irrelevant” without passing a speaking order in that regard.

4. The learned counsel for the petitioner drew my attention to provisions of sections 146, 148 and 151 of the Evidence Act and contended that he also has a right to put such questions to the prosecution witness which have bearing on his veracity and may shake his credit worthiness. It is submitted that the Ld. Special Judge has disallowed the questions on the premise of these being “irrelevant” and not “scandalous” and the “irrelevance” is not a ground to disallow the question in view of section 151 Evidence Act. It was further submitted that a question considered “irrelevant” falls in the category of Section 148 or Section 149 and cannot be forbidden outrightly, but an option has to be provided to the witness by the Judge to answer the question or not.

5. The learned counsel for the respondent CBI challenged the maintainability of the present writ petition. It was contended that the correctness of the order of the Ld. Special Judge cannot be examined by this Court under its writ jurisdiction. Relying upon Chandravarkar Sita Ratna Roa v. Ashlata S. Guram AIR 1987 SC 117, and Indian Renewable Energy Development Agency Ltd v. Debts Recovery Appellate Tribunal & Ors 127 (2006) DLT 158, she contended that the order of the Ld. Special Judge being an interlocutory order is not amenable to writ jurisdiction of this Court under Article 226 of the Constitution.

6. The learned counsel for the respondent CBI submitted that, section 152 of the Evidence Act empowers the Judge to forbid any question in cross-examination, which in his view, 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 this witness already recorded, it can be construed 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 138 of the Evidence Act, it is further submitted that the right to cross-examination of th