TMI Blog2012 (4) TMI 808X X X X Extracts X X X X X X X X Extracts X X X X ..... remise of these being irrelevant . The two questions which were disallowed by the Special Judge were, Do you have a mobile phone and Do you pay service tax on the phone bill of your mobile phone . The petitioner has preferred the present petition, challenging the order of the Ld. Special Judge dated 12.01.2012 disallowing these questions. 3. The learned counsel for the petitioner submitted that the purpose of asking those questions were, to prove that the Government was earning revenue on mobile telephony through Service Tax during the tenure of co-accused A. Raja as Telecom Minister. Further it was also his intention to show that the said prosecution witness was not aware that Service Tax was levied on mobile telephony. It is further submitted that the Ld. Special Judge cannot deprive the defense counsel of his right of cross-examination in view of sections 146, 148 and 151 of the Evidence Act, and cannot over-rule questions put up by the defense counsel as irrelevant without passing a speaking order in that regard. 4. The learned counsel for the petitioner drew my attention to provisions of sections 146, 148 and 151 of the Evidence Act and contended that he also has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the parties, the learned counsel for the petitioner submitted that he does not wish to re-examine the said witness, however he seeks clarity on his right to cross-examination of the witnesses. 8. I have heard the learner counsel for the petitioner, the respondent CBI and perused the case laws cited by the parties. I have also perused the examination of PW12. 9. In Indian Renewable Energy Development Agency Ltd (supra), the Division Bench of our High Court held thus: An order allowing or rejecting an application for cross examination is only an interlocutory order. In the present case by the interlocutory order the application for cross examination has been partly allowed. In our opinion, this does not give rise to any cause of action. It is only when the final order is passed by the DRT disposing the proceedings before it finally that a cause of action will arise. In any event, writ jurisdiction is discretionary jurisdiction and a writ petition is not ordinarily entertained against an interlocutory order . 10. The maintainability of the present petition may be seen in the light of the law laid down by the Hon'ble Supreme Court. In the case of Chandravarkar Sita R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y with a view to keep subordinate Courts within the limits of their authority and only in very exceptional circumstances, warranting interference in exercise of these extraordinary powers. Therefore, the judgment of the Hon'ble Supreme Court in the case of Nayjot Sandhu (supra) does not rule out invoking and exercise of constitutional powers of this Court in appropriate cases. 13. The main grievance of the counsel for the petitioner is that unless the questions put to the witness are forbidden under Section 151 or 152 of the Indian Evidence Act, the court cannot disallow the questions put to the witness in his cross-examination. It was also his submission that if the questions put to a witness were not to be allowed, the right course for the Trial Judge under Section 148 was to decide if the witness was to be compelled to answer the same or not and if he thinks fit, he may warn the witness that he was not obliged to answer. 14. Under the scheme of Evidence Act, Chapter X deals with the examination of the witnesses. Different kinds of responsibility are cast on the judge in different provisions of this Chapter while recording evidence. Then the Courts also have extensive p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 well- established rule of evidence that a party should put to each of a witness so much of a case as concerns that particular witness. 16. It is experienced that sometimes, cross examination goes rambling way and assumes unnecessary length and is directed to harass, humiliate or oppress the witnesses. It is also experienced that the Courts often either due to timidity or the desire not to become unpopular or at times, not knowing its responsibilities and powers, allow the reckless, scandalous and irrelevant cross examinations of witnesses. In fact, in such situations, the court has the power to control the cross examination. The court has a duty to ensure that the cross examination is not made a means of harassment or causing humiliation to the witness. While allowing latitude in the cross examination, court has to see that the questions are directed towards the facts which are deposed in chief, the credibility of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch are points in issue, the witness is not protected to answer even it amounts to criminating him but, if it is relevant only tending to impeach the witness's credit, the discretion lies with the Judge to decide whether witness shall be compelled to answer it or not. Generally, he will not be allowed to be contradicted except in the cases under Section 153. In fact, Section 132, 146, 147 and 148 embrace whole range of questions, which can properly be addressed to witness and these should be read together. 18. Thus, it can be said that the relevancy of evidence is of a two- fold character; it may be directly relevant in the bearing on, elucidating, or disproving, the very merits of the points in issue. Secondly, it can be relevant in so far as it affects the credit of a witness. As regard the relevancy relating to a credit of a witness, the court has to decide the same under Section 148 whether the witness is to be compelled to answer or not or to be warned that he is not obliged to answer. The Judge has the option in such a case either to compel or excuse. The provisions of Section 148-153 are restricted to questions relating to facts which are relevant only in so far as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Hence, in view of the statement already recorded, the stretching on the subject of Service tax in a context alien to the subject matter of the case and having no relevance whatsoever to the subject matter, is a cause of concern for the Court and it shall be the duty of the Court to forbid such questions. 22. On the touchstone of Chapter X of the Evidence Act, it is his duty to monitor the cross-examination of the witness. The Hon'ble Supreme Court in the case of Makhan Lal Bangal Vs. Manas Bhunia Ors., 2001 AIR (SC) 490 held thus: An election petition is not a dispute between the petitioner and respondent merely; the fate of the constituency is on trial. A Judge presiding over the trial of an election petition, and any trial for the matter of that, needs to effectively control examination, cross-examination and re-examination of the witnesses so as to exclude such questions being put to the witnesses as the law does not permit and to relieve the witnesses from the need of answering such questions which they are not bound to answer. Power to disallow questions should be effectively exercised by reference to Sections 146 148 150 151 and 152 of the Evidence Act by exc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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