We may, however, observe that when the trial Judge assigned reasons in support of his judgment, we are of the opinion that the High Court while exercising its revisional jurisdiction was required to assign reasons as to how and to what extent, if any, it intended to differ with the order of the learned trial Judge. Sub-section (2) of Section 243 confers discretionary jurisdiction upon the learned trial Judge to refuse to summon witnesses at the instance of the defence, inter alia, on the ground that it was made for the purpose of vexation or delay or for defeating the ends of justice. Such an order under Sub-section (2) of Section 243 Code of Criminal Procedure is required to be recorded by the learned Judge in writing. It was so done. Learned Special Judge, as noticed, hereinbefore, considered the matter at some depth. The High Court, therefore, while exercising its revisional jurisdiction Under Section 397 read with 401 of Code of Criminal Procedure was required to assign reasons in support of its conclusions as to how the reasons assigned by the learned trial judge were untenable and/or were otherwise insufficient. {Para 9}
IN THE SUPREME COURT OF INDIA
Criminal Appeal Nos. 925 and 926 of 2006
Decided On: 14.12.2006
Central Bureau of Investigation Vs. Tuncay Alankus
Hon'ble Judges/Coram:
S.B. Sinha and Markandey Katju, JJ.
Citation: (2013) 9 SCC 611,MANU/SC/8908/2006.
1. The appeals are allowed in terms of the signed order.
2. These appeals are directed against the judgment and order dated 14.7.2005 passed by the learned Single Judge of the High Court of Delhi at New Delhi in CRLRP No. 126/2005 whereby and whereunder the Respondent's Revisional Application from an order of the learned Special Judge dated 11.10.2004 in regard to examination of defence witnesses had been allowed in part.
3. The Respondent herein was charged for commission of offences punishable Under Section 120B read with 409 Indian Penal Code, 420 Indian Penal Code and 13(2) read with 7, 11 and 13(1)(c) and (d) of PC Act, 1988 and Section 409, 420 Indian Penal Code Section 7, 11 and 13(1)(C) and (d) of Prevention of Corruption Act, 1988.
4. Examination of the prosecution witnesses before the Special Judge, admittedly, is over. The Respondent has also been examined Under Section 313 of the Code of Criminal Procedure. He produced a list of 63 defence witnesses. The learned Special Judge examined at some length as to whether the deposition of the said witnesses would be necessary and by reason of an order dated 11.10.2004 opined that six out of 63 witnesses cited on behalf of the defence should be allowed to be examined.
5. Some of these witnesses were directed to be examined through Video Conferencing. It was, furthermore, directed that the defence shall obtain willingness from the witnesses and also the dates which would be convenient to them for their examination on Video Conferencing. Aggrieved thereby and dissatisfied therewith the Respondent filed an application for review of the said order. It was dismissed. An application under Article 277 of the Constitution of India was, thereafter, filed and by reason of a judgment and order dated 31.1.2005, it was opined that exercise of jurisdiction under Article 226 and 277 of the Constitution of India would be inappropriate. It was observed that the remedy of the Respondents, if any, for ventilating their grievances in relation to such order would be an appropriate application Under Section 397 or 482 of the Code of Criminal Procedure. Some other observations were also made in relation to other parts of the order impugned before it. Pursuant to or in furtherance of the said observations, the Respondent filed a Revisional Application before the High Court being No. 126/2005. We may at this stage notice that in the writ proceedings the number of witnesses were brought down to 21 from 63 apart from those witnesses whose examination was allowed by the trial Court. The Revisional Court without entering into the merit of the matter and without dealing with the reasonings of the trial Judge has allowed the application stating:
... Heard Counsel for the parties and have perused the order under challenge. It appears to me that in the matter which has such wide ramifications, as also a large number of witness have been examined from the side of the prosecution, full and complete opportunity ought to be given to the defence to lead its evidence. What each witness of the defence seeks to depose has been stated in the application which according to me justifies their examination. It is, therefore, fair to permit the defence to examine the 21 witnesses, list whereof has been placed on record, in addition to the witness allowed by the trial Court....
6. Submission made on behalf of the Appellants before us is that having regard to the provisions of Sub-section (2) of Section 243 Code of Criminal Procedure as also Section 312 thereof, the Revisional Court ought not to have lightly interfered with the discretionary jurisdiction exercised by the learned trial Judge.
7. Mr. Bhaskar P. Gupta, learned senior Counsel appearing on behalf of the Appellant in Criminal Appeal No. 926 of 2006 submitted that the order of injunction passed against the Respondent by this Court in its order dated 4.9.2006 should be made absolute.
8. Mr. Harjinder Singh, learned senior Counsel appearing for the Respondent, on the other hand, would submit that the defence was entitled to examine its witnesses. It was contended that the delay in disposal of the matter was not on account of the accused but on account of the prosecution. It was pointed out that the Respondent was in custody for a period of 7 1/2 years before he was released on bail.
9. We do not propose to enter into rival contentions of the parties. We may, however, observe that when the trial Judge assigned reasons in support of his judgment, we are of the opinion that the High Court while exercising its revisional jurisdiction was required to assign reasons as to how and to what extent, if any, it intended to differ with the order of the learned trial Judge. Sub-section (2) of Section 243 confers discretionary jurisdiction upon the learned trial Judge to refuse to summon witnesses at the instance of the defence, inter alia, on the ground that it was made for the purpose of vexation or delay or for defeating the ends of justice. Such an order under Sub-section (2) of Section 243 Code of Criminal Procedure is required to be recorded by the learned Judge in writing. It was so done. Learned Special Judge, as noticed, hereinbefore, considered the matter at some depth. The High Court, therefore, while exercising its revisional jurisdiction Under Section 397 read with 401 of Code of Criminal Procedure was required to assign reasons in support of its conclusions as to how the reasons assigned by the learned trial judge were untenable and/or were otherwise insufficient.
10. A large number of witnesses are sought to be examined by the defence. They are from as many as ten different countries. Some witnesses are also from India.
11. If the Summons are sought to be obtained to examine the said witnesses, ordinarily, the defence is required to satisfy the Court as to how examination of the said witnesses would be in aid of its defence. The witness need not be summoned only because the defence wishes the Court to do so. As the learned Single Judge of the High Court, in our opinion, has not adverted to this aspect of the matter the impugned judgment cannot be sustained.
12. We have not gone into the question as to efficacy or otherwise examination of the said witnesses on video conferencing as who would bear the requisite expenses therefor, as necessary direction is to be issued by the High Court in this behalf also.
13. The contentions of the parties in all respect shall remain open. However, we would request the learned trial Judge to examine those witnesses who are covered in terms of its order dated 11.10.2004.
14. Mr. Harjinder Singh, learned Counsel states that the Respondent shall also make all endeavour to bring the defence witnesses for their examination before the Court, if it is possible. No exception thereto can be taken.
15. Keeping in view the fact that the trial is pending since 1995, we would request the High Court to consider the desirability of hearing out the matter as expeditiously as possible and preferably within a period of two months from the date of communication of this order.
16. We would appreciate if the High Court issues requisite directions while disposing of the Revisional Petition in this behalf also to the trial Court.
17. The interim order dated 4.9.2006 is made absolute to the effect that the Respondent is restrained from withdrawing the amount from the accounts in Swiss Bank till the decision of the matter. The appeals are allowed accordingly.
No comments:
Post a Comment