Mayamuthu and four others vs State by Inspector of Police Penagudi Police Station, Tirunelveli District (Crime No. 18 of 1997)

Petitioners/accused 1 to 5 in S.C.No. 472 of 1997 on the file of learned II Additional Sessions Judge Tirunelveli have filed this petition u/s 482

of the Code of Criminal Procedure, not to treat the Court witness 1 as an hostile witness.

The case in brief is as follows:

The petitioner are facing trial in S.C. 472 of 1997 for alleged offences u/s 147, 148, 341, 326, 324, 307 and 302 read with 149 I.P.C. P.Ws. 1 to

5 were examined and cross examined. On 16.7.1999 P.W. 6 to 13 were examined and cross examined, on 19.7.1999 P.Ws. 14 and 15 were

examined and cross examined case was adjourned to 22.7.1999 for further adjudication. At this juncture, the learned trial Judge issued summons

to one Ebenezar, son of David who is supposed to be an independent eye witness. Since the learned Public Prosecutor, had already dispensed

with the examination of the said witness, he was summoned as a court witness. The said witness appeared before the court on 22.7.1999 and he

was examined as a court witness and the learned Judge put questions as contemplated u/s 165 of India Evidence Act. He had not supported the

prosecution case and he stated that he was not aware of the occurrence. At this juncture the learned trial Judge has treated the witness as hostile

and permitted the public prosecutor to cross examine the said witness and he also cross examined as usual, The learned Judge also gave an

opportunity to the defence counsel to cross examine the witness.

Learned counsel contended that if a person is summoned as a court witness and if he has got supported the prosecution case, it is the duty of the

presiding officer not to treat him as hostile one, Because of this, it had caused grave injustice to the defence. It is a total non-compliance of

principles of Criminal Jurisprudence. Hence, this petition is filed for getting appropriate relief with suitable direction to meet out the ends of justice.

Learned Government Advocate also pointed out that no doubt, the sessions Judge has got power to examine the witness as a court witness, but

the treating of the said witness as hostile is not proper and correct and as such, this defect can be removed.

Heard the learned counsel of both sides.

It is admitted that P.Ws.1 to 15 were examined by the learned II Additional Sessions Judge in S.C.No 472 of 1997. One of the eye witnesses

named Ebenezar, Son of David, who was dispensed with by the prosecution was summoned as a court witness by the learned Judge end he was

also examined on 22.7.1999. Since the Court witness stated that he was not aware of the occurrence and the police never examine him previously,

he was treated as a hostile witness by the court. In my view, the entire approach made by the trial court is not proper and correct. When the court

summons a witness, an opportunity has to be given to the prosecution as well as the defence to cross examine the witness the court has no power

suo motu to treat the witness as hostile. The contention of the learned counsel for the petitioner that the procedure followed by the learned Judge is

unknown to the principles of criminal jurisprudence is well founded. Further more, the said witness also should not be confronted with the

statement recorded during investigation since he had categorically stated that he never gave any statement for the police. There is much force in the

contention of the petitioner and under circumstances, the order of the trial court treating the court witness No. 1 as hostile is liable to be set aside.

Learned counsel for the petitioner also relied on Shakila Khader and Nausheer Cama, Mrs. Shakila Khader and Others Vs. Nausheer Cama

and Others, wherein it is stated as follows:

Only prosecution witnesses can be contradicted by reference to their statements made to police and not court witnesses or defence witnesses?

This decision is applicable to the case on hand.

For the reasons mentioned above, the order of treating the court witness as hostile witness by the learned Sessions Judge is set aside and

similarly, the prosecution is not entitled to question the said witness with reference to the alleged statement said to have been given by him, when

the same denied by him and as such, the answers relating to such questions also shall stand deleted.

Consequently Crl.M.P.No. 6565 of 1999 is closed.