Fateh Chand v. CBI

1. Present petition has been filed challenging the Court’s observation recorded by the learned Special Judge, CBI during the cross-examination of PW-13 Sh. Ajay Kumar Singh, recorded on 04.11.2022. The relevant portion of the cross-examination is as follows:- “Ql, Q[2], S[1] and S[2] were sent to CFSL on 07.06.2017 and was not in my possession on 07.06.2017. I do not remember the exact time when I sent the same to CFSL. I can not tell even by approximation as to whether the same were sent to CFSL at 11AM, 12 Noon, 2PM, 3PM, 4PM or 5PM. Attention of the witness is drawn to internal page 2 of Ex. PW4/5 (Colly.) at encircled portion X and the witness is asked that if it is correct that Q[1] is mentioned at point X. After seeing the same, witness states that it is correct that Q[1] is mentioned at point X. It is correct that Q[1] was played to the witness and the transcription was prepared on 07.06.2017. (Vol: Ql and Q[2] were played to both the witnesses and the complainant.). The witnesses were present with me till evening on that day. Court Question: Did you play the original Ql and Q[2] to both the witnesses and the complainant or the copies of Ql and Q2? (Court question is objected to by the Ld. Counsel for Al on the ground that witness has voluntarily even stated about playing Ql and Q[2] and also stated about not being aware of the CBI Manual and the court question is to seek explanation on the contradiction in the cross examination which is not inconformity with law.) Court Observation: The objection is not sustainable as there is no contradiction in the cross examination and only clarification has been sought from the witness as to whether he played the original memory cards Q[1] and Q[2] or the copies thereof.”

2. Learned counsel for the petitioner submits that the learned Special Judge, CBI has not only rejected the objections raised by the defence counsel but has also returned a finding that there is no contradiction in the cross-examination on this point. Learned counsel for the petitioner submits that this finding could have been given only after the appreciation of the entire evidence of PW-13 Sh. Ajay Kumar Singh.

3. Learned counsel for CBI states that the objection, as being raised by the learned defence counsel, has rightly been rejected and the judge has ample power to put the question to the witness in the witness box.

4. There is no doubt as to the proposition that the learned Trial Judge has ample power under Section 165 of the Indian Evidence Act, 1872. The objective of the Judge while conducting the trial is a quest for truth. Learned Judge in order to reach to the justice may put any question to the witness. However, the learned Judge should have restrained himself from giving any finding which may ultimately prejudice either of the parties during the course of evidence. This Court considers that without going into the merits of the rival contentions raised by the parties, the observations of the learned Trial Court that there is no contradiction in the crossexamination of PW-13 Sh. Ajay Kumar Singh needs to be set aside.

5. Learned Special Judge shall consider the objections, as raised by the learned defence counsel, during the cross examination of PW-13 Sh. Ajay Kumar Singh, at the time of the final adjudication of the case taking into account entire evidence of PW-13 Sh. Ajay Kumar Singh will be on record. Thus, the objection as raised by the learned defence counsel in response to the court question, i.e., “Did you play the original Ql and Q[2] to both the witnesses and the complainant or the copies of Ql and Q2?” shall remain open. For the purpose of clarity, the objection of the learned defence counsel shall remain open to be argued by the learned defence counsel at the time of the final adjudication of the case.

6. However, it is made clear that this Court has not gone into the merits of the case and no expression made herein shall tantamount to an expression on the merits of the case.

7. Accordingly, the present petition stands disposed of.

DINESH KUMAR SHARMA, J NOVEMBER 30, 2022