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2015 Supreme(Guj) 1058
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
G.R. UDHWANI, J.
State of Gujarat - Applicant
Versus
Rajaniranjan @ Raaj Ramesh Mahapatra - Respondent
Criminal Revision Application (Against Order Passed by Subordinate Court) No. 137 of 2015
Decided On : 20-10-2015
Advocate Appeared:
For the Applicant : Ms. Moxa Thakker
For the Respondent: Ms. Subhadra G. Patel
Important Point
On mere failure to identify accused, a witness cannot be declared hostile.
Headnote:Indian Evidence Act, 1872 – Section 154 – Hostile witness – An identifier may not be able to identify person when called upon in Court for many reasons including time lag which might have eroded his memory, confusion in his mind about identity particularly when witness is like an Executive Magistrate whose duty it is to get frequently confronted with number of persons for identification – On mere failure of him to identify accused, he cannot be declared hostile – It is required to be noted that job of witness was to explain procedure he followed during identification parade of accused – He was a witness to procedure and not a witness to identity of accused – Impugned order set aside and Trial Court will proceed with matter and allow defence to cross-examine witness and follow other procedure as contemplated under law.
Result – Criminal Revision Application allowed.
1. Rule. Respondent waives service.
2. This matter was specifically fixed on the top of the board. The Revision Application raises the material questions of law as regards power of the Court in declaring the prosecution witness ‘hostile’ as is known in the legal parlance. The petitioner had put in the witness box one Jayeshkumar Ramanlal Kapadiya, Executive Magistrate as PW:5 Exh:35 for the purpose of establishing the identity of the accused in the proceedings conducted by him for the purpose. On the conclusion of examination in chief of the witness, the witness failed to identify one of the accused in the open Court. On this sole ground, even without any application form the public prosecutor, the learned Trial Judge, without citing the source of power and as if the learned Judge possessed inherent powers, proceeded to declare the witness hostile and thereby, embarrassing situation was created for the prosecution to put the questions to the witness, as are otherwise permissible in the cross-examination of the witness, as contemplated in Section 154 of the Indian Evidence Act, 1872 (for short “the Act”), though the prosecution wanted to rely upon the witness. The question therefore is whether the said course of action adopted by the learned Trial Judge was legal and valid or did it suffer from a total non-application of mind.
3. While the learned counsel for the respondent is unable to contend that Section 154 of the Evidence Act confers inherent powers upon the Court to declare witness as ‘hostile’, the learned APP invited the attention of this Court to Section 154 of the Act which reads as under:
“154. Question by party to his own witness.-
(1) The Court may, in its discretion, permit the person who calls a witness to put any question to him which might be put in cross-examination by the adverse party.
(2) Nothing in this section shall disentitle the person so permitted under sub-section (1), to rely on any part of the evidence of such witness.”
4. It is clear from the bare perusal of the aforestated provision that a discretion of granting a permission to the person who calls a witness, to put any question, which might be put in the cross-examination by the adverse party to the witness, is vested in the Court. Pertinently, by the use of the expression ‘permit’, the application seeking the permission by the caller of witness for the purpose contemplated in Section 154 is implicit. Thus, it is the caller of the witness only who can decide upon the course of action contemplated in Section 154 of the Act. There is nothing in Section 154 of the Act empowering the Court to exercise said power on behalf of the caller of the witness; and there cannot be such powers for the simple reason that a person calling the witness is the master of his case and the Court cannot assume advisory jurisdiction or the Court cannot impose its advice upon the unwilling caller.
5. Of course, wide powers are otherwise invested in the Court elsewhere either under the Code of Criminal Procedure or the Indian Evidence Act or similar such law and in order to do justice, it can always use such power. One of the illustrations of such power is Section 165 of the Act where the Court is empowered to put the questions in relation to relevant or irrelevant facts.
6. As pointed out hereinabove instead of taking a decision in haste and hurry, it would have been appropriate for the Court to look into relevant provisions of the Evidence Act, Criminal Procedure Code or any other law that, in the opinion of the Court, was applicable to the facts of the case to bring home the relevant facts. It is settled legal position that the witness can be declared hostile even during reexamination and that can be done by the party who calls the witness. Therefore, as such, the Court should be mindful of the fact that a hasty action may ultimately result in miscarriage of justice and in some cases even give rise to an irreversible situation.
7. Expression ‘hostile’ has nowhere been
