Full Text
HIGH COURT OF DELHI
JUDGMENT
17497/2024 ABHISHEK DEEP .....Petitioner
For the Petitioner : Adv. M. A. Niyazi, Adv. Kirti Bhardwaj, Adv. N. Sethi & Adv. A. Ali.
For the Respondent : Mr. Ajay Vikram Singh, APP for the State.
SI Preeti, PS Maurice Nagar.
1. The petitioner has filed the present petition, inter alia, praying as under: a. Call for the records, set aside and quash the order dated 27.04.2024 Passed by Sh. Sanjay Garg-l, Ld. Principal District and Sessions Judge, Central District, Tis Hazari Courts, New Delhi in T.P. Crl. No. 14/2024 Titled as Abhishek Deep V. The State arising out of SC No.28345/2016 titled as State V. Abhishek Deep arising out of FIR No. 68/12 PS Maurice Nagar U/S 364A1506 IPC; b. Transfer the Pending SC No.28345/20 16 titled as State V. Abhishek Deep from The Court of Sh. Joginder Prakash Nahar, Ld. ASJ (FTC)-I, Central to any other Court of competent jurisdiction; c. Quash/set aside the deposition dated 06.02.202 to the extent of question being disallowed by Sh. Joginder Prakash Nahar, Ld. ASJ (FTC-I) in SC No.28345/2016 titled as State v. Abhishek Deep and for allowing the same to question to be asked from the Witness/ 1.0 during further cross examination; Order dated 06.02.2024 passed by the learned Additional Sessions Judge, Tis Hazari Courts, Delhi (‘Trial Court’) disallowing certain questions during the cross-examination of PW-21 (ACP Alka Azad, Investigating Officer). Order dated 27.04.2024 passed by the learned Principal District & Sessions Judge, Tis Hazari Courts, Delhi (‘PDSJ’) dismissing the petitioner’s transfer petition under Section 408 of the Code of Criminal Procedure, 1973 (‘CrPC’). Brief Facts
2. The FIR No. 68/2012 dated 16.08.2012, was registered under Section 364A/506 of the Indian Penal Code, 1860 (‘IPC’), on a complaint by one Ashwani Kumar, the father of the victim (hereafter ‘complainant’). The complainant alleged that the victim was kidnapped and a ransom of ₹1.[5] crores was demanded.
3. During the investigation, the victim and the petitioner were traced to a hotel in Karol Bagh, where CCTV footage allegedly showed the victim entering the hotel voluntarily, providing identification, and paying for her stay.
4. Following the investigation, the chargesheet was filed and the matter being - SC No. 28345/2016 is at the stage of cross-examination of PW-21, ACP Alka Azad (IO), pending trial before the learned Trial Court.
5. The petitioner has raised grievances about two specific instances during the trial: 5.[1] First Instance (25.11.2023): The learned Trial Court disallowed a question posed to PW-21 being "Q. You have stated in your chief ‘the roommate of the kidnapped girl was examined at St. Stephens College and recorded her statement’. What is the meaning of recording of statement?”. The learned Additional Sessions Judge disallowed the said question stating, “The question is disallowed as the meaning of recording of statement is itself clear as English language from the word itself and it is not factual elaboration of the case.” 5.[2] Second Instance (06.02.2024): PW-21 was again called for continuation of cross examination, wherein the learned counsel for the accused proposed a question, inter alia, “Q. Did you investigate whether the accused and the prosecutrix had dinner and breakfast and lunch on 15.08.2012 & 16.08.2012 in the Hotel?” The said question was also disallowed by the learned Additional Sessions Judge stating that “The question is disallowed and it is asked from the learned counsel for the defence that not to ask the witness repeatedly whether she has investigated on one or another aspect as the chargesheet is filed after investigation. However specific facts can be put up to the witness on factual investigation”.
6. Aggrieved by the same, the petitioner filed a Transfer Petition (Crl.) No. 14/2024, before the learned PDSJ alleging bias on the part of the learned Trial Judge and denial of a fair trial, which was dismissed by order dated 27.04.2024.
7. The learned counsel for the petitioner submitted that the impugned orders passed by the learned Trial Court disallowing certain questions during the cross-examination of PW-21 (IO) and the dismissal of the transfer petitioner by the learned PDSJ are flawed and merit interference by this Court.
8. He submitted that the right to a fair trial is a fundamental right guaranteed under Article 21 of the Constitution of India. This right includes the opportunity to effectively cross-examine prosecution witnesses to test their credibility and to expose any weakness in the prosecution’s case.
9. He submitted that cross-examination is a critical tool to ascertain the veracity of a witness and to extract facts favourable to the defense. Relying on the judgment in Zarhira Habibulla Sheikh and Ors. v. The State of Gujarat and Ors.: (2006) 3 SCC 374, the learned counsel emphasized that a fair trial is not only a right of the accused but it is also a duty of the judiciary to ensure impartial proceedings.
10. He argued that the question “what is the meaning of recording a statement” was sought to clarify whether the statement referred to was recorded in writing, as required under the law, or orally, and to identify the procedure adopted by the investigating officer. The disallowance of this question, the learned counsel contended, deprived the petitioner of the opportunity to examine the legality of the investigation process.
11. He further argued that the question “Did you investigate whether the accused and the prosecutrix had dinner and breakfast and lunch on 15.08.2012 & 16.08.2012 in the hotel?” was relevant to ascertain whether the conduct of the prosecutrix during the alleged kidnapping was consistent with her claims of duress. The learned Trial Court’s observation that this question was repetitive and irrelevant disregarded its significance to the defence’s case. The learned counsel placed reliance on Sachin v State of M.P.: M.Cr.C.No.35901-2021, wherein it was held that cross-examination is a fundamental right of the accused, and disallowing relevant questions hampers the defence’s ability to present its case.
12. He contended that the learned PDSJ erred in dismissing the transfer petition moved by the petitioner. The grounds for dismissal— that the petitioner had alternative remedies and that no evidence of bias was presented—were not in consonance with the facts of the case. He stated that both the learned Trial Court and the learned PDSJ failed to consider the petitioner’s submissions adequately. The dismissal of the transfer petition on procedural grounds, without addressing the petitioner’s apprehensions of bias substantively, amounted to a miscarriage of justice. Analysis
13. The limited question that falls for consideration before this Court is whether the learned Trial Court’s disallowance of certain questions during cross-examination and the dismissal of the transfer petition by the learned PDSJ were justified and legally sustainable. The power of the Court to disallow questions
14. The power of the Court to disallow certain questions is enshrined in Chapter X of the Indian Evidence Act, 1872 (‘Evidence Act’). Section 138 of the Evidence Act stipulates that the examination-in-chief and cross-examination must relate to relevant facts, while cross-examination can extend beyond the testimony provided in examination-in-chief, provided it pertains to relevant facts. Section 136 of the Evidence Act further empowers the Court to evaluate the admissibility and relevance of evidence, ensuring that irrelevant or immaterial questions are excluded. This Court in R. K. Chandolia v. CBI: 2012 SCC OnLine Del 2047 highlighted that the Court has an obligation not only to admit relevant evidence but also to exclude evidence deemed irrelevant. It was observed as under: “14…... Under Section 136, the Judge has not only to satisfy that the evidence that was to be led was relevant but, in what manner if proved, would be relevant. It was only if he was satisfied that the evidence, if proved, would be relevant, that he could admit the same. If it is his duty to admit all the relevant evidence, it is no less his duty to exclude all irrelevant evidence….
15. Section 137 gives a statutory right to the adverse party to cross-examine a witness. Section 138 only lays down the three processes of examination to which a witness may be subjected. It does not deal with the admissibility of the evidence. It also provides that the examination and cross examination must relate to relevant facts, but the cross examination need not be confined to the facts to which the witness testified in his examination-in-chief. Under this Section, the cross-examination can go beyond the facts narrated in examination-in-chief, but all such questions must relate to relevant facts. It is not that under the right of cross examination, the party will have the right to ask reckless, irrelevant, random and fishing questions to oppress the witness. The “relevant facts” in cross examination of course have a wider meaning than the term when applied to examination-in-chief. For instance, facts though otherwise irrelevant may involve questions affecting the credit of a witness, and such questions are permissible in the cross examination as per Section 146 and 153 but, questions manifestly irrelevant or not intended to contradict or qualify the statements in examination-in-chief, or, which do not impeach the credit of a witness, cannot be allowed in cross examination. It is wellestablished rule of evidence that a party should put to each of a witness so much of a case as concerns that particular witness.”
15. Sections 146 and 148 of the Evidence Act provide additional safeguards, enabling the Court to determine the propriety and relevance of questions during cross-examination. While Section 146 of the Evidence Act allows questions aimed at testing the veracity or credibility of a witness, Section 148 of the Evidence Act empowers the Court to disallow vexatious, irrelevant, or speculative questions that do not serve the interests of justice. The observations in R. K. Chandolia v. CBI (supra) underline that cross-examination cannot be used as a tool for fishing expeditions, random inquiries, or harassment of witnesses.
16. The Hon’ble Apex Court in Criminal Trials Guidelines Regarding Inadequacies and Deficiencies, In Re. v. State of Andra Pradesh and Ors.: (2021) 10 SCC 598, recognized the importance of addressing objections to questions during trial but noted that the Trial Court retains discretion to disallow questions if they are deemed irrelevant or unnecessary to the case. It was observed as under:
17. The disallowed questions in the present case ought to be evaluated against the backdrop of the above principles: 17.[1] “What is the meaning of recording of statement?” 17.1.[1] This question did not pertain to any material fact or contradiction in the case but sought an interpretative response regarding a procedural term. The learned Trial Court rightly disallowed the question as irrelevant, as it neither clarified the witness’s testimony nor contributed to the accused’s defence. 17.[2] “Did you investigate whether the accused and the prosecutrix had dinner and breakfast and lunch on 15.08.2012 & 16.08.2012 in the hotel?” 17.2.[1] While the defence sought to highlight gaps in the investigation, this question was repetitive and did not address any core issue in the trial. The learned Trial Court was justified in disallowing it as irrelevant and vexatious. Even otherwise, what was investigated is a matter of record in the form of the charge sheet and if certain aspect which, according to the accused, is relevant and was not investigated, the benefit, if any, would be available at the time of final argument.
18. The learned Trial Court exercised its discretion in accordance with Sections 136, 138, 146, and 148 of the Evidence Act, ensuring that the proceedings remained focused on material issues. In the opinion of this Court, there is no perversity in the learned Trial Court’s approach. Dismissal of the Transfer Petition
19. The petitioner’s transfer petition was primarily based on an alleged bias arising from the disallowance of questions during crossexamination. However, as held in Usmangani Adambhai Vahora v. State of Gujarat: (2016) 3 SCC 370, a transfer petition requires /substantive proof of bias or judicial impropriety. Merely being dissatisfied with a judicial order or facing adverse rulings does not justify transferring a case.
20. The learned PDSJ, in dismissing the transfer petition, rightly observed the following: 20.[1] Lack of Substantive Evidence of Bias - The petitioner failed to produce any credible evidence demonstrating bias or prejudice on the part of the learned Trial Court. The allegation of bias was based solely on the disallowance of questions, which were adjudicated within the scope of judicial discretion. 20.[2] The learned PDSJ noted that the petitioner had the option to seek redressal regarding disallowed questions by approaching the appellate or superior court. A transfer petition cannot substitute this remedy. 20.[3] Lastly, the learned PDSJ noted that the trial was at an advanced stage, with prosecution evidence nearing conclusion. Allowing a transfer at this juncture would disrupt the trial’s momentum and undermine judicial efficiency. Conclusion
21. In light of the above, this Court finds no merit in the petitioner’s arguments. The disallowance of questions during cross-examination by the learned Trial Court is within the bounds of judicial discretion. The questions, disallowed, in the opinion of this Court are irrelevant, and did not substantiate the defence’s case.
22. The dismissal of the transfer petition by the learned PDSJ is justified, as the petitioner failed to establish a credible apprehension of bias or prejudice.
23. Thus, there is no perversity in the impugned orders. The present petition is devoid of merit and stands dismissed. AMIT MAHAJAN, J NOVEMBER 26, 2024