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PETITIONER:

MANISH DIXIT AND ORS.

Vs.

RESPONDENT:

STATE OF RAJASTHAN

DATE OF JUDGMENT: 18/10/2000

BENCH:

K.T.Thomas, S.N.Variava

JUDGMENT:

THOMAS, J.

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A jeweller of Jaipur (Gulshan Makhija) was murdered on

his way back home from his jewellery mart. He was abducted

by two persons who intercepted the Gypsy (Jeep) driven by

him on the night of 23.2.1994 with bags of jewellery kept in

the vehicle. The abductors came on a motorcycle and took

the jeweller to some distance where he was shot dead. The

assailants decamped with a big booty consisting of valuable

jewellery. There was one more person in the gypsy - a

family friend by name Michael Hens (a German national who

had a short sojourn at Jaipur as a tourist). He was jostled

out of the gypsy before they abducted the deceased.

Five persons were arraigned by the police for the said

abduction and murder. But the trial court convicted only

two among them for the aforesaid offences (A1 Sharad Dhakar

and A2 Manish Dixit), and the other three were acquitted.

The High Court confirmed the said conviction only as against

A2 Manish Dixit, and the offence against A1 Sharad Dhakar

was found to be limited to Section 411 of the Indian Penal

Code.

More details of the occurrence are these: Gulshan

Makhijas family was running the jewellery shop called Star

of India at Ashoka Hotel building, Jaipur. He used to be

in the shop everyday till it was closed in the night. On

23.2.1994 he called his mother over phone and told her that

one guest would also be with him for dinner and that both

would reach home soon. But the unfortunate mother could

never see his son alive thereafter. Gulshan Makhija and his

German friend together set out from his shop in a brand new

gypsy on the night after closing his shop. He carried with

him a bulk of jewellery including gold, silver and valuable

stones. As they reached Janpath at Shyam Nagar (near Bansal

Hospital) the jeep was blocked by the two persons who rode

on a motorcycle. One of them dragged Michael Hens out of

the jeep and then pointed a revolver at him. He then pushed

the jeweller off the driving seat and himself occupied that

seat and drove the jeep keeping the dump-founded deceased on

the side seat. The jeep disappeared from the sight of the

sole eye-witness and the jeep was followed by the other

assailant on the motorcycle.

The German tourist (Michael Hens) somehow managed to

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reach the house of the deceased and divulged to the inmates

thereof in his broken English of what happened. The

brothers of the deceased took Michael Hens to the police

station (Sodala at Jaipur) and lodged a complaint which

became the basis of the FIR for offences under Section 365

and 379 of the Penal Code.

On the next morning an anonymous phone call reached

the officer-in-charge of Sodala police station that a white

coloured gypsy was lying abandoned at Dayal Nagar Extension

(near Gopalpur Bypass). Police then rushed to that place

and found the vehicle lying on a side road. Dead body of

Gulshan Makhija was seen in the vehicle with head injuries.

Police noticed two bags of ornaments strewn on the road near

the vehicle and some other bags of ornaments were lying

inside.

On 8.3.1994 police received a phone call at

Idhayakapuri police station that an attache was lying

abandoned near Dhuleshwar Bagh Colony. The police traced

out the spot and found the attache and a bag also which

contained nearly forty-two kgs. of ornaments, besides some

documents relating to Gulshan Makhija. Police lifted the

fingerprints noticed on the attache and the bag.

On 14.3.1994 A1 Sharad Dhakar was arrested by the

police. On the strength of information elicited from him

police recovered some ornaments from a buried condition on

the floor of Universal Automobile Garage. A motorcycle

(RJM 6373) was also recovered pursuant to the information

collected from the same accused.

After Sharad Dhakar was apprehended police was in

search of Manish Dixit (A2) but he was absconding even after

proceedings were taken against him under sections 82 and 83

of the Code of Criminal Procedure (for short the Code).

As he was not traced out despite such steps he was published

as a proclaimed offender. However, in July 1994 police got

sleuth information that he was moving around in Delhi, and

they made close watch to locate him. On 12.7.1994 they got

some indication that he could be found at Alka Hotel in

Connaught Place, New Delhi. The investigating officer made

a sudden raid at that place and caught him. A revolver

(.455 bore bawale mark-4, bearing No.93255) was

recovered from his person along with some live cartridges.

On the strength of information elicited from him the

investigating team recovered three Kgs. of silver ornaments

from the basement of the house of Rahul Sharma (A4).

The said arrest was followed by the arrest of three

more accused who were arraigned as A3 to A5. After

completing the investigation police charge-sheeted the case

against all of them, Sharad Dhakar (A1) and Manish Dixit

(A2) for the main offences. The trial court acquitted the

last three accused and convicted A1 Sharad Dhakar and A2

Manish Dixit of the offences under Sections 302, 364 read

with 120B and also Section 34 of the IPC and sentenced them

to imprisonment for life on the main count and to lesser

term for the other counts. Both the convicted persons

preferred separate appeals before the High Court of

Rajasthan. The State filed an appeal against acquittal of

the three accused. Subsequently, PW30 Devender Sharma, a

Tehsildar filed a petition in the High Court for expunging

certain observations made against him by the trial judge in

respect of the evidence given by him. All these were heard

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together and a Division Bench of the High Court confirmed

the conviction and sentence passed on A2 Manish Dixit and

dismissed his appeal. As for A1 Sharad Dhakar the Division

Bench found that he could only be convicted under Section

411 of the IPC and hence he was acquitted under Sections 302

& 364 read with 120 IPC. The appeal filed by the State and

the appeal filed by PW30 were dismissed. Hence these

appeals by Special Leave, one by A2 Manish Dixit and the

other by the State against the acquittal of A1 of the

offences under Sections 302 and 364 read with 120B IPC and

the third by PW3 Devender Sharma against the adverse

observations made against him.

When the case was charge sheeted by the investigating

officer this was not a case based on circumstantial evidence

as Michael Hens was cited as the solitary eye-witness. But

he was not examined by the prosecution for which we did not

get any satisfactory explanation at the outset. But Shri

Sushil Kumar Jain, learned counsel for the State of

Rajasthan, submitted to us under instructions that

prosecution could not examine that German tourist as he had

already left the country before the trial started. We feel

that he should have been allowed to go back only on an

undertaking that he would return to India for giving

evidence in this case, he being the solitary eye witness.

Why the prosecution and the State did not adopt such a

precautionary measure is not explained to us satisfactorily.

This lapse rendered the prosecution to transform this case

to one of circumstantial evidence alone. In this context we

may point out that even the High Court had observed that it

was a sensational case pertaining to the robbery and murder

for which various teams of police officers were

constituted. The lack of alacrity shown by the State

agency in a case which High Court described as sensational

deserves only reprobation from us.

To obviate the said difficulty the Public Prosecutor

in the trial court made a futile attempt to render the

statement made by Michael Hens to the inmates of Gulshan

Makhija as evidence falling within the purview of Section 6

of the Evidence Act. That attempt gained success at the

trial stage as the Sessions Judge approved the contention.

But the Division Bench of the High Court has very rightly

repudiated such a contention. As the counsel for the State

did not make even an attempt to render such statement

admissible in evidence, we are relieved of the task to deal

with that statement.

While dealing with the case against A2 Manish Dixit we

noticed that the following circumstances were projected

against him and were found established by the prosecution:

(1) On 24.2.1994 he stayed at hotel Sanjay (Jaipur) in the

pseudonymous name Ramesh Chander Sharma. (2) He absconded

from the scene soon after A1 was apprehended. (3) On

12.7.1994 he was arrested at Connaught Place, New Delhi and

the revolver (described above) was taken from his person (4)

When PW-41 the ballistic expert examined the bullet

recovered from the head of deceased Gulshan Makhija and the

revolver together he found that the said bullet could only

have been fired from the said revolver. (5) On 18.7.1994

the investigating officers recovered three bags of ornaments

from the basement of the house of A4, pursuant to the

information elicited from Manish Dixit. (Those ornaments

were in the possession of the deceased at the time of his

abduction).

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If those circumstances were established by the

prosecution there is little scope to contend that its

cumulative result would be different from the guilt of

Manish Dixit in the involvement of the murder of Gulshan

Makhija. The sessions court and the High Court have

concurrently held that those circumstances were well

established by the prosecution with reliable evidence.

The first circumstance was proved with the help of two

items of evidence. One is the Register of hotel Sanjay in

which there is an entry made on 24.2.1994 that a person who

styled himself as Ramesh Chander Sharma had stayed in the

hotel. Second is the evidence of the hand-writing expert

who said that the hand which wrote the said entry was that

of Manish Dixit. Evidence of those two items has been

accepted by the two courts. But Sri U.R. Lalit, learned

Senior Counsel who argued for Manish Dixit contended that

the said entry by itself is of no avail on the language of

Section 34 of the Evidence Act.

True Section 34 contains the rider that such

statement shall not alone be sufficient evidence to charge

any person with liability. In the first place the

provision deals only with books of accounts. It primarily

pertains to pecuniary transactions. The expression books

of accounts means books in which merchants, traders or

businessmen generally keep their accounts i.e. statements

of debits and credits or receipts and payments. A register

kept at the counter of a hotel need not contain any

statement of account. So until it is shown that such

register also pertained to the pecuniary transactions

involving the customers of the hotel the same cannot be

treated as a book of accounts. In the second place, even if

it is assumed that a register kept in a hotel can be treated

as a book of accounts, the entry therein cannot become the

sole premise to charge a person with liability. The entry

found in the register kept at Sanjay Hotel can only show a

circumstance that A.2 (Manish Dixit) has written in it the

name Rakesh Chander Sharma as the person who occupied

particular room in the hotel on 24.2.1994. Why did A.2

write such a name in the register on the said date which was

the immediately following date of the murder of Gulshan

Makhija. He only knows why he wrote a different name. In

the absence of any explanation from him it is open to the

court to draw an inference that A.2 (Manish Dixit) had some

reasons to conceal his identity to the hotel people and

hence he wrote a pseudonymous name in the register.

Regarding the circumstance that Manish Dixit absconded

from the scene it is contended that absconding by itself

need not necessarily lead to the inference of culpable mind

against the absconder. Learned counsel submitted that

Manish Dixit was reporting to the police till 6.3.1994 and

hence he could not be treated as an absconder at all. In

this context it has to be pointed out that the disappearance

of A.2 (Manish Dixit) from the locality was contemporaneous

with the apprehension of A.1 (Sharad Dhaker). Even after

resorting to legal measures to trace out A.2 (Manish Dixit)

he remained underground until he was caught unawares. In

the aforesaid broad features the absconding of A.2 (Manish

Dixit) cannot be side-stepped as an innocuous circumstance.

Of course absconding by itself has no decisive implication,

nevertheless it has utility to form a link to concatenate

the full chain.

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On the evidence pertaining to the recovery of the

revolver from the person of A.2 (Manish Dixit) on 12.7.1994

Shri U.R. Lalit made a two-pronged attack. First is that

the very recovery is illegal as it was done in violation of

the legal requirements. Second is that the revolver

produced in court as recovered from A.2 (Manish Dixit) was

in fact found lying in the Gypsy on 24.2.1994.

Before dealing with the said argument we may point out

that there is no dispute that the said revolver is the very

same revolver used by the assailant (whoever would have been

he) for killing Gulshan Makhija. This premise remains

unassailable in view of the unimpeachable evidence given by

the ballistic expert PW-41 (DR. P.S. Manocha) who

testified that the bullet recovered from the head of the

deceased was closely examined and found to have been fired

from Exhibit W-1 revolver itself. Of course Shri U.R.

Lalit made a bid through the written arguments submitted, to

contend that the said opinion of the ballistic expert cannot

become conclusive evidence to show that the said bullet

could only have been fired from the said revolver. He also

made an attempt to show that the bullet forwarded to the

expert need not have been the same as recovered from the

head of the deceased.

We are not disposed to countenance the said

far-fetched contention at this late stage particularly in

view of the concurrent finding arrived at by the two courts

on the said factual issue. That apart, even the alternative

contention of the defence is that the revolver was collected

from the scene of occurrence itself. Hence it is an idle

exercise to delineate the contention that a different

revolver might have been examined by the expert. Moreover,

it is unnecessary to repeat the reasons propounded by the

expert to reach that conclusion because the trial court and

High Court have dealt with them in great detail.

If the said revolver was found in the possession of

A.2 (Manish Dixit) its forceful legal implication against@@

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him regarding his involvement in the murder of Gulshan@@

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Makhija cannot be gainsaid. Knowing the extent of its

implication learned counsel focussed his attack on that very

circumstance itself. At any rate, we are bound to deal with

the arguments focussed on the said circumstance, for, the

said circumstance has a decisive effect. If the argument

addressed by the learned counsel on that score gets

acceptance the benefit of it would help the accused in a

great measure.

According to the learned senior counsel, recovery of

the revolver was in violation of Sections 165 and 166(3) of

the Code. Regarding Section 165 it is admitted that for the

search conducted at Alka Hotel, Connaught Place, New Delhi,

no independent witness of the locality was called despite

the fact that it is a very populous area of the metropolis.

True no independent witness has affixed signature on Ext.

P.80 - Seizure Memo. The police officer said that they made

an effort to secure at least two persons from Connaught

Place but none was willing to be a witness. It is no

surprise that any of the traders of Connaught Place would be

unwilling to offer his service as a witness to any police

action if he knew that he would have to bear all the

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sufferings thereafter, to give evidence in a criminal court,

more so, when that court would be at a far off place in a

different State altogether. City people are quite conscious

of such consequences and they would normally be wary to

signify to such witnessing. The evidence of the police

officer that nobody was willing to stand as a witness in

Ext.P-80 cannot, therefore, be spurned down as improbable.

Section 166 of the Code deals with searches made

outside the limits of the police station concerned.

Sub-section (1) thereof enables the officer in charge of one

police station to require the services of the officer in

charge of another police station. It is optional on the

former to do so. Sub-section (2) enjoins a duty on the

latter to conduct the search on being so requisitioned by

the former. Sub-section (3) and (4) are relevant as PW-35

(Umed singh) and PW-41 (DR. P.S. MANOCHA) (Himmat Singh)

(both investigating officers from Jaipur) opted to conduct

the search for A2 ((Manish Dixit) at Delhi, by themselves.

Those two sub-sections read thus:

(3) Whenever there is reason to believe that the

delay occasioned by requiring an officer in charge of

another police station to cause a search to be made under

sub- section (1) might result in evidence of the commission

of an offence being concealed or destroyed, it shall be

lawful for an officer in charge of a police station or a

police officer making any investigation under this Chapter

to search, or cause to be searched, any place in the limits

of another police station in accordance with the provisions

of section 165, as if such place were within the limits of

his own police station.

(4) Any officer conducting a search under sub-section

(3) shall forthwith send notice of the search to the officer

in charge of the police station within the limits of which

such place is situate, and shall also send with such notice

a copy of the list (if any) prepared under section 100, and

shall also send to the nearest Magistrate empowered to take

cognizance of the offence, copies of the records referred to

in sub- sections (1) and (3) of section 165.

It is evident from sub-section (3) that it permits an

investigating officer belonging to one police station to

search any place falling within the limits of another police

station in certain exigencies. One such exigency is when

there is possibility of delay in requisitioning the services

of police personnel of another police station and such delay

could defeat the very purpose of the search, then the

investigating officer can proceed to that other place and

conduct the raid or search by himself. However, when he

does so he is obliged to conform to certain requirements as

prescribed in sub-section (4). One is that he shall inform

the officer in charge of the other police station and send

him a copy of the list prepared by him in the search.

Second is that he should send the copies of the search

documents to the nearest magistrate who has the competence

to take cognizance of the offence.

What is the basis of the argument that the aforesaid

requirements have not been complied with in respect of the

search made by the investigating officers at Alka Hotel in

Connaught Place, New Delhi? PW-37 (Sanjay Aksetriya) the

Circle Officer of the police station under whose leadership

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the raid was conducted at Alka Hotel has said in

cross-examination that he had given the information to the

higher officer of the area who agreed to inform the police

officers of Delhi at their own level. There can be no

grievance that a copy of the search has not been forwarded

to the court concerned.

On the aforesaid reasons we do not find any merit in

the contention that the search made at Alka Hotel was not in@@

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conformity either with Section 165 or Section 166 of the

Code.

The other contention is that a revolver was found in

the Gypsy on 24.2.1994 and if that was with the police the

recovery of revolver from A2 at Alka Hotel on 12.7.1994

could only have been the result of a planting of the firearm

at the hotel. The basis for the said contention is the

testimony of PW-4 (Bhanwar Lal), PW-6 (Rajendra Kumar), PW-9

(Vijay Kumar) and PW-19 (Lala Ram Yadav).

It is unnecessary to deal with the evidence of PW-4

and PW-9 as Public Prosecutor had treated them as hostile on

the ground that they tried to help the accused by stating

so. PW-19 is not of much use because all that he said, that

too in cross- examination, was that he had seen one

revolver type object lying on the front side. He then

added that it was not fully visible to him.

But the evidence of PW-6 (Rajendra Kumar) cannot be

bypassed as the other three witnesses because even in chief

examination itself that witness has said like this: There

I saw one Gypsy being parked in which the items of gold and

silver were lying and below the foot rest of the steering of

the rear seat a pistol of iron colour was lying and that was

seized by the police.

Shri U.R. Lalit, learned senior counsel, who argued

for Manish Dixit contended that the aforesaid evidence of

PW-6 is binding on the prosecution particularly because the

Public Prosecutor did not declare him hostile and no effort

was made by him to show what the witness said was untrue.

Shri Sushil Kumar Jain, in answer to that argument,

submitted that the mere lapse on the part of the Public

Prosecutor for not declaring PW-6 as hostile should not be

taken as a conscious admission made by the said Prosecutor

that what the witness said on that score was true. Shri

Sushil Kumar Jain highlighted two aspects in order to ignore

the above evidence of PW-6. First is that the said witness

was not an attestor nor a witness in Ext.P.18 Memo which was

prepared relating to the Gypsy. Second is that PW-6 was not

cited nor examined to say anything about the Gypsy or its

seizure. According to the learned counsel, PW-6 had

overshot by saying something which was not the point for

which he was cited by the prosecution and it was a lapse on

the part of the Public Prosecutor who perhaps would have

inadvertently missed hearing the witness stating that fact.

We may look at this aspect from a broader angle. On

24.2.1994 a team of Rajasthan Police found a Gypsy lying on

the roadside and they prepared Ext.P.18 Memo. If any

firearm was then lying in the Gypsy why should the police

suppress that fact in the document which they prepared

contemporaneously? It should be remembered that there was a

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number of police officers and a number of persons looking

on. In such a situation the police would most certainly

have mentioned in Ext.P.18 if there was any firearm lying in

the Gypsy because it is not that easy to suppress such a

vital material. That apart, it is too much to assume that

the police concealed that crucial weapon in Ext.P.18 with

the far sighted object of using that weapon for planting it

elsewhere five months later for a concocted and fake

recovery. If actually a firearm was found lying in the

Gypsy on 24.2.1994, it is inconceivable that the police

would not have taken it into custody and forwarded it to the

Forensic Science Laboratory to check up whether it was the

same firearm which the assailant could have used for

murdering the deceased. In this context we may note that

Ext.P.18 which was prepared on 24.2.1994 relating to the

Gypsy was promptly forwarded to the court.

All the above broad features cannot be allowed to

submerge

to the bottom and a concurrent finding made by the two courts on

that aspect be thrown overboard merely because of an uninvited

oral vibration made by PW-6. The least which can be commented on

the Public Prosecutor who examined that witness, for not making

any attempt to probe into that answer is that it smacks of

irresponsibility in conducting the prosecution if he was an

experienced Public Prosecutor.

The next circumstance is the recovery of quite a large

number of ornaments on the strength of the statement made by

Manish Dixit to the investigating officer. That statement

attributed to the accused is convincingly clear that it was

he who concealed such ornaments in the house of a

co-accused. The only argument raised by Shri U.R. Lalit on

that aspect is that the police had already conducted the

search of the premises of that co-accused immediately after

his arrest. There was a long interval between that earlier

search and the recovery effected by the police on the

strength of the statement made by Manish Dixit. Very

probably Manish Dixit would have chosen such a place to

conceal the ornaments on a thinking that the said place is

safer than other places as the possibility of a second

search at the same place would be too remote.

We are, therefore, not persuaded to interfere with the

conviction passed on A2 for the offence found against him.@@

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About A.1 (Sharad Dhakar) the proved circumstances are

too scanty for coming to the conclusion that he too was

involved in the abduction and murder of Gulshan Makhija.

Shri Sushil Kumar Jain relied on the circumstance that a

blood stain was noted by the Forensic Sciences Laboratory on

the motorcycle seized by the police pursuant to the

information received from A.1 (Sharad Dhakar) during his

interrogation. The said blood stain was found to be of O

group. (The blood group of the deceased was also O). We

would assume that the said circumstance has been established

by the prosecution, but that is not decisive enough to point

to the involvement of that accused in the murder of the

deceased. If there were other circumstances, apart from the

recovery of some jewellery belonging to the deceased from

the possession of this accused, perhaps the aforesaid

circumstance (relating to the blood stain found on the

motorcycle) would have lent support to an inference against

him. As it is, we find it difficult to reverse the order of

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acquittal passed in favour of A.1 (Sharad Dhakar) in respect

of the major counts of offences. Appeal filed by the State

against A.1 (Sharad Dhakar) is only to be dismissed.

This takes us to the appeal filed by one Devendra

Kumar Sharma (who was examined in this case as prosecution

witness PW.30) complaining of the observations made

against him by the trial court as well as the High Court.

When he was examined in court he was holding the post of

Sub-Registrar, Jaipur. On 9.6.1994 he was holding the post

of Tehsildar, Jaipur. (Perhaps in that capacity he was

ex-officio Executive Magistrate also). His services were

requisitioned by the Investigating Officer for conducting

the test identification of jewelleries recovered in this

case. When he was examined as prosecution witness for

speaking to the said test identification, the Public

Prosecutor during the examination-in-chief elicited a few

facts from him pertaining to those aspects and the documents

prepared in connection therewith were marked through him.

When he was cross- examined he was asked about the seal

impressions found on the packets which contained the

recovered jewelleries. He answered that he did not compare

the impression with any other seal. He was then confronted

with the memo of seizure (Ext.P.28) and he was asked whether

he had recorded the fact therein truly. He answered thus:

It might have been correctly recorded in that memo or I may

not be able to recollect. After the cross- examination was

over the Public Prosecutor did not put a single question in

re-examination. This was either because he did not find any

need to elicit any explanation from the witness or because

the Public Prosecutor was inattentive to the implications

regarding the answers elicited by the cross-examiner from

that witness.

But the trial court came down very harshly against the

said witness and made the following castigating observations

against him in the judgment:

The statement of such a responsible officer like

Tehsildar opposing the Ferd made by him shows either

ex.P-20, 21 and 28 were written wrong or he has made wrong

statement before the Court. In any circumstances, this

action is highly unexpectable from the responsible officer

of such status. Therefore, I would like to bring to the

notice of the State Government that in this regard

appropriate action should be taken against him, so that any

officer does not make such a false report or does not give

false evidence in the Court.

When PW-30 noticed the disparaging remarks made

against him he moved the High Court under section 482 of the

Code to have those remarks expunged. But the Division Bench

of the High Court, after dealing with the evidence given by

the witness pointed out that even after refreshing his

memory the witness did not reconcile with the

inconsistencies in his statement with the contents of the

documents prepared by him. The Division Bench thereupon

made the following observations:

It is needless to mention that the role of persons

who conducted test identification parade is very important.

He is expected to take all necessary precautions while

conducting test parade. He is also required to depose

correctly before the court of law and not to deliberately

make vague, confusing, inconsistent and contradictory

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statements against the contents of the documents prepared

and order passed by him. The observations made by the

learned trial judge do not amount to abuse of process of

law. We therefore, do not find any valid and sufficient

reason to expunge the impugned observation/remarks made by

the trial court against him. Hence this Cr.Misc. Petition

filed under s.482 Cr.P.C. deserve to be dismissed.

In our opinion, both the trial court and the High

Court should have avoided making such unsavory comments

against a witness in such a manner as to entail serious

implications on his career, merely because the answers which

were extracted from him through cross questions contained

contradictions or inconsistencies. It should have been

remembered that PW-30 (Devendra Kumar Sharma) was cited by

the prosecution and the chief examination was conducted by a

Public Prosecutor. Once the witness was cross-examined the

Public Prosecutor had an opportunity under law to put such

questions as were necessary for explanation of matters

referred to in cross-examination. It is ununderstandable

to us why the Public Prosecutor did not put a single

question at re-examination stage, at least for the purpose

of giving him opportunity to explain such incongruities

which fell from his mouth during cross-examination.

If the trial court felt that some of the answers given

by that witness during cross-examination were so

inconsistent or contradictory and that such answers per se

required judicial castigation the court also had a duty to

invoke its powers envisaged in Section 165 of the Evidence

Act. The width of the powers of the court to put questions

is almost plenary and no party can possibly raise an

objection thereto. This can be discerned from the language

employed in the first limb of the section. It reads thus:

The Judge may, in order to discover or to obtain

proper proof of relevant facts, ask any question he pleases,

in any form, at any time, of any witness, or of the parties,

about any fact relevant or irrelevant; and may order the

production of any document or thing; and neither the

parties nor their agents shall be entitled to make any

objection to any such question or order, nor, without the

leave of the Court, to cross-examine any witness upon any

answer given in reply to any such question.

This Court has indicated the very wide dimension of

the powers of the court under section 165 of the Evidence

Act in State of Rajasthan vs. Ani {1997 (6) SCC 162}. We

extract the following observations which would amplify the

position:

The said section was framed by lavishly studding it

with the word any which could only have been inspired by

the legislative intent to confer unbridled power on the

trial court to use the power whenever he deems it necessary

to elicit truth. Even if any such question crosses into

irrelevancy the same would not transgress beyond the

contours of powers of the court. This is clear from the

words relevant or irrelevant in section 165. Neither of

the parties has any right to raise objection to any such

question.

In the present case when the Public Prosecutor failed

to utilize the opportunity afforded by law to ask PW-30

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(Devendra Kumar Sharma) such questions as are necessary for

explanation of the matters referred to in cross-examination,

and when the trial judge also failed to invoke the plenary

powers to put such questions as he should have put regarding

the answers given in cross-examination it was unfair, and we

may say uncharitable to a witness to shower him with

judicial reprobations in the judgment. Such disparaging

remarks and the direction to initiate departmental action

against him could have very serious impact on his official

career.

Even those apart, this Court has repeatedly cautioned

that before any castigating remarks are made by the court

against any person, particularly when such remarks could

ensue serious consequences on the future career of the

person concerned he should have been given an opportunity of

being heard in the matter in respect of the proposed remarks

or strictures. Such an opportunity is the basic

requirement, for, otherwise the offending remarks would be

in violation of the principles of natural justice. In this

case such an opportunity was not given to PW-30 (Devendra

Kumar Sharma). [(State of U.P. vs. Mohd. Naim {1964 (2)

SCR 363}, Ch. Jage Ram vs. Hans Raj Midha {1972 (1) SCC

181}, R.K. Lakshmanan vs. A.K. Srinivasan {1975(2) SCC

466}, Niranjan Patnaik vs. Sashibhusan Kar {1986 (2) SCC

569}, State of Karnataka vs. Registrar General {2000 (5)

Scale 504}].

It is apposite in this context to extract the

following observations made by this Court in Dr. Dilip

Kumar Deka v. State of Assam {1996(6) SCC 234}:

We are surprised to find that in spite of the above

catena of decisions of this Court, the learned Judge did

not, before making the remarks, give any opportunity to the

appellants, who were admittedly not parties to the revision

petition to defend themselves. It cannot be gainsaid that

the nature of remarks the learned Judge has made, has cast a

serious aspersion on the appellants affecting their

character and reputation and may, ultimately affect their

career also. Condemnation of the appellants without giving

them an opportunity of being heard was complete negation of

the fundamental principle of natural justice.

We therefore unhesitatingly allow the appeal filed by

PW-30 (Devendra Kumar Sharma) and order expunction of all

the disparaging remarks made against him by the trial judge

as well the High Court in the judgments impugned before us.

The direction to proceed against him departmentally would

also stand deleted.

The appeals are disposed of accordingly.