JUDGMENT

Dinesh Kumar Sharma, J. The present petition has been filed challenging the order dated 28.07.2022 whereby the learned Special Judge, CBI vide impugned order sustained the objection of learned PP for CBI that the defense cannot be permitted to confront the witness PW-18 Mathew Samuel in the cross-examination with the portion of his deposition recorded before the commission.

2. Briefly stated that the facts are that on 06.12.2004 a case bearing RC No. AC1A0006/2004 was registered against the petitioner under Sections 7/9/35 and 13(1)(d) of the Prevention of Corruption Act, 1988.

3. In backdrop Zee Television telecasted a story about the alleged corruption in the defence establishment of this country in March 2001. The story was based on a sting operation carried out by Tehlka.com wherein about 100 tapes had been allegedly recorded. The Tehlka.com claimed that the content from the so-called original tapes was copied to VHS tapes running into 100 hours. The said content was edited to produce the story of 4 and 1/2 hours that was telecasted on Zee Television. Thereafter, Government of India vide Gazette notification dated 24.03.2001 constituted a commission under Section 3 of the Commission of Inquiry Act.

4. The terms of reference for the commission were as under:

"a) To inquire whether the transaction relating to Defence and other procurements referred to in the videotapes and transcripts have been carried out in terms of prescribed procedure and imperatives of national security;

b) To inquire whether in any of the aforesaid procurement transactions, illicit gains have been made by persons in public office, individuals, and any other organization as alleged, and if so, to what extent;

c) To suggest action that may be taken in respect of persons who may be found responsible by the Commission for their acts of commission and/or omission in respect of transactions referred to in sub-clause (a) and above;

d) To inquire into all aspects relating to the making and publication of these allegations and any other matter arises from or is connected with or incidental to any act, omission or transaction referred to in sub-clause (a) and (b) above;"

5. Accordingly, Justice K. VenkataswamyCommission of Inquiry was constituted. Justice K. Venkataswamy was succeeded by Justice S.M. Phukan. However, the said commission did not submit any report as the Government of India abolished the said commission and entrusted the investigation to Central Bureau of Investigation.

6. The controversy in the present case in short is while PW-18 was being cross-examined on 18.07.2022 before the learned Trial Court, the learned defence counsel sought permission of the court to question the witnesson the basis of the detailed deposition of the witness before Justice K. VekataswamiCommission of Inquiry contained in two volumes. This was objected to by learned PP of the CBI on the ground it has no relevance to the present prosecution and it is barred by virtue of Section 6 of Commission of Inquiry Act.

7. The perusal of the proceedings dated 18.07.2022 of the Learned Special Judge reveals that on the query of the court it was clarified that the record of the said Commission of Inquiry does not constitute the part of the charge-sheet. However, the learned defence counsel insisted that the deposition of this witness before the said Commission of Inquiry is in fact a previous statement and thus, the witness can be confronted in respect of a contradiction in the said previous statement in accordance with Section 145 of the Indian Evidence Act. However, this was opposed by learned PP for CBI on the ground that the said statement was not made before any court of law or in the course of investigation before the investigating officer.

8. It is pertinent to mention that on 27.02.2020 during the cross-examination of PW-18, the two affidavits, Ex.PW-18/D1 and Ex.PW-18/D2, were introduced in court for the first time. Therein, the witness identified his signatures on