Result of U.P. Higher Judicial Service (Main Written) Examination, 2014 Direct Recruitment to U.P. Higher Judicial Service held on 14th, 15th and 16th November, 2014 has been declared. High Court of Madhya Pradesh, Jabalpur notified Advertisement for recruitment additional district judges through M.P. Higher Judicial Service (Entry Level) Direct Recruitment for BAR, Exam 2015 Haryana Judicial Services Examination 2014-Pre is conducted on 10th of Jan 2015. The result is awaited. THE HIGH COURT OF DELHI will hold examination for direct recruitment against 14 vacancies to Delhi Higher Judicial Service on Sunday, the 06th April,2014-Last Date 06.02.2014 13/11/2013: While renewing the term of the appointment of the existing incumbents the State Government is required to consider their past performance and conduct in the light of the recommendations made by the District Judges and the District Magistrates. Therefore, the High Court could not have issued a Mandamus for renewal of the term of respondent Nos. 1 and 2 and other similarly situated persons and thereby frustrated the provisions of LR Manual and Section 24 Cr.P.C .- SUPREME COURT.
HIGH COURT JUDGEMENT
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  Date 2/19/2010 12:00:00 AM
  Court Allahabad High Court
  Parties Pintoo & Others Vs. State Of U.P.
  Appeal Bails - 22094 of 2009
  Act Criminal Procedure Code - 439
  Judgement
  Honble Amar Saran,J. The prayer for bail has been made on behalf of the applicants Pintoo, Ajai and Indal Dhobi in case crime no.34/2002 under Section 302/341 I.P.C. P.S. Saini, district Kaushambi after the bail of the applicants was cancelled by an order dated 29.7.2009 passed by the Additional Session Judge/F.T.C.-2 in S.T.No.243 of 2002. The brief facts of this case were that on 17.1.2002 at about 8 p.m., the informant Ram Raj, his brother Bhairo Prasad, and nephews Suraj Pal and Ram Kripal were going to the west of the village for loading onions on a D.C.M. vehicle. As soon as they reached near a pond at the side of the road, the applicants who were lying in wait with country made pistols surrounded them. The accused Pintoo cried out that Suraj Pal should not be allowed to escape and he fired on Suraj Pal with his country made pistol which hit Suraj on his stomach causing him to fall down. Then the brother-in-law (sala) of Pintoo, namely the applicant Indal also fired on him with his country made pistol, but this fire missed. When the witnesses tried to intervene, the accused Ajay threatened them that if anyone intervened in the matter, they would meet the same fate as Suraj Pal. The FIR was registered under section 307 I.P.C but later when Suraj Pal died, the case was converted to one under Section 302 and 307 I.P.C. The accused persons were however granted bail by the then Session Judge by orders dated 1.2.2002 and 16.3.2002. The statement of PW1 Bhairo Prasad was recorded on 21.11.2008 in which he affirmed the version mentioned in the F.I.R. But as his examination could not be completed on that date hence the recording of the evidence was postponed. Further, examination of this witness could only take place on 24.6.2009. On this date when the counsel for the accused cross examined him, PW1 Bhairo Prasad turned hostile, and the prosecution was granted permission to cross examine him. As this witness had turned hostile in his cross examination, the Court issued a written notice to him on 24.6.09 itself to show cause why he should not be prosecuted for an offence under section 181 I.P.C. for having made contradictory depositions on different dates. In reply to the notice, Bhairo Prasad gave a written reply on 8.7.2009 in which he mentioned that he had earlier deposed on 21.11.2008, but then the accused persons Pintoo, Ajay and Indal began to threaten him repeatedly, that if he did not change his version in Court they would murder his son Ram Kripal. His son Ram Kripal used to go to Ajuwa as he had a shop there for ironing clothes, hence out of fear for the life of his son, Bhairo Prasad claimed to have given a wrong statement on 24.6.2009. He said that the earlier version given on 26.11.2008 was the correct version of the incident and that he had given this version without any pressure. In view of this he prayed for withdrawal of the notice. In the background of the reply submitted by Bhairo Prasad PW1 to the show cause notice, the Court issued a notice to the accused applicants in exercise of powers under section 439(2) Cr.P.C as to why the bail granted to them be not cancelled. The accused applicants gave a joint written reply on 15.7.2009 in which they pleaded that the claim of Bhairo Prasad for changing his version at the instance of the accused persons was false. He had voluntarily given the new statement. He had never set up the version of being threatened by the accused until he was called upon to give a reply to the notice under section 181 I.P.C. The subsequent witness Raja Ram P.W. 2, the informant had also not deposed that the accused persons had given any threat to the witnesses that unless they resile from their earlier testimony, they would kill the son of Bhairo Prasad and that the applicants had never abused the bail granted to them. The Session Judge however after examining the matter, recorded a finding in his order dated 29.7.2009 that the accused applicants had extended grave threats to the witness that his other son would meet the same fate as Suraj Pal. In such circumstances no witness could freely depose in Court without fear or pressure and the contention of the accused that PW1 Bhairo Prasad had given this explanation because he was facing a prosecution for giving false testimony in view of the notice under Section 181 I.P.C did not appear to be correct. Significantly it was pointed out that after the notice had been issued to the accused persons as to why their bail should not be cancelled because they were tampering with the witnesses, when the witness PW 2 Ram Raj appeared in Court for his deposition he has fully supported the F.I.R. version in his examination in chief on 8.7.09. It was further observed in the impugned order that if the accused applicants had not threatened Bhairo Prasad PW1 that they would kill his other son Ram Kripal then he would definitely not have changed his version. In these circumstances the Trial Court withdrew the notice under section 181 I.P.C. issued to the witness and cancelled the bail of the accused applicants and directed that the applicants be taken into custody. This order is under challenge in the present case. It is argued by the learned counsel for the applicants that as the notice dated 24.6.2009 called upon the witness Bhairo Prasad to show cause why he should not be prosecuted under section 181 I.P.C. for giving a false testimony during the earlier examination on 26.11.08, the Court was debarred from holding in its order dated 29.7.09 that the earlier version dated 26.11.08 and not the latter statement dated 24.6.09 gave out the correct version. In my view it is not material whether the Court gave a notice considering the first statement or the later testimony dated 26.4.09 to be false, because when a witness gives contradictory versions in his testimony then a per se conclusion can be reached by the Court that one of the versions is false. It is for the Court to finally evaluate at the trial as to which of the two versions, the initial version consistent with the FIR or the changed version that a witness deposes to after turning hostile gives the true picture, and there is no fetter on the Court accepting any part of the testimony of a witness that it considers reliable. In Gura Singh v. State of Rajasthan, AIR 2001 SC 330 it has been observed in paragraph 11: 11. There appears to be misconception regarding the effect on the testimony of a witness declared hostile. It is a misconceived notion that merely because a witness is declared hostile his entire evidence should be excluded or rendered unworthy of consideration. This Court in Bhagwan Singh v. State of Haryana, AIR 1976 SC 202 : (1976 Cri LJ 203), held that merely because the Court gave permission to the Public Prosecutor to cross-examine his own witness describing him as hostile witness does not completely efface his evidence. The evidence remains admissible in the trial and there is no legal bar to base conviction upon the testimony of such witness. In Rabindra Kumar Dey v. State of Orissa, AIR 1977 SC 170 : (1977 Cri LJ 173) , it was observed that by giving permission to cross-examine nothing adverse to the credit of the witness is decided and the witness does not become unreliable only by his declaration as hostile. Merely on this ground his whole testimony cannot be excluded from consideration. In a criminal trial where a prosecution witness is cross-examined and contradicted with the leave of the Court by the party calling him for evidence cannot, as a matter of general rule, be treated as washed off the record altogether. It is for the Court of fact to consider in each case whether as a result of such cross-examination and contradiction the witness stands discredited or can still be believed in regard to any part of his testimony. In appropriate cases the Court can rely upon the part of testimony of such witness if that part of the deposition is found to be creditworthy. (Emphasis added) The learned counsel for the applicants has also contended that the witness had resiled from his statement voluntarily and only when he faced impending prosecution under section 181 IPC, he resiled from his later version, and re-affirmed his earlier version. This contention does not appear to be acceptable. In my view if the Court was of the opinion that ordinarily the father or uncle would not resile from his version mentioned in the F.I.R. and earlier deposition in the Court, unless some strong pressure was brought to bear on him, the Court cannot be faulted for this reasoning. In this back ground if the Court is of the opinion that no useful purpose would be served in directing prosecution of a witness for an offence under section 181 IPC or any allied provision, and decides to discharge such a witness and instead to issue notice to the accused as to why their bail be not cancelled, there is no illegality in the said direction. Another submission of the learned counsel was that as the witness had deposed on oath on being cross examined on 24.6.2009 that the applicants were innocent and that he had denied that he had colluded with the accused on being cross examined by the prosecution. This version should have been preferred to the version contained in his reply dated 8.7.2009 to the show cause notice that he had resiled from the earlier version on account of the threat of the accused-applicants. Reliance was placed in this connection by the learned counsel for the applicant on the case of Zahira Habibullah Sheikh and another Vs. State of Gujarat and others reported in 2006 (1) U.P. Criminal Ruling( SC) 519, particularly to some passages therein for keeping the stream of justice pure and transparent. Learned counsel for the applicant submits that in that case Zahira Habibullah Sheikh who had changed her version was punished by the Apex Court and was not discharged. I may mention that the Apex Court had been constrained to prosecute and punish Zahira Sheikh because she had been changing her version at different stages, and had caused great anguish to the Court in a case in which no witnesses were coming forward to depose to the true facts as to how the grave crime had been committed. The present case is clearly distinguishable on facts. Here, immediately after the show cause notice was issued to the witness PW-1 Bhairo Prasad as to why he should not be punished under section 181 IPC for giving conflicting versions, he had immediately made a clean breast of the matter in his reply dated 8.7.09 that because he had been subjected to undue pressure as threats were extended to him that his other son would also meet the same fate as the deceased Surajpal, that he had given the incorrect version on 24.6.2009 and that his earlier version 26.11.08 brought out the correct position. It is significant that the learned AGA also relied upon the case of Zahira Habibullah Sheikh which emphasizes that in order to keep the stream of justice pure and unsullied the Court must not function like a tape recorder and it must pro-actively search for the truth. Wide powers have been given for this purpose also under section 311 Cr.P.C, which empowers the Court to summon a witness or to recall any person in attendance and to re-examine him. Section 165 of the Evidence Act also confers wide powers on the Court to question a witness or to order the production of any person that the Judge considers necessary. It was to abide by the spirit and import of the decision of the Apex Court in Zahira Sheikhs case that the learned trial Judge had issued a notice to Bhairo Prasad as to why he should not be prosecuted, on the same date that the witness had turned hostile, whereupon the witness submitted a reply to the notice on 8.7.09 as to how on account of threats to the life of his son, he had been forced to turn hostile. The Court thereafter issued notice to the accused as to why their bail be not cancelled in such circumstances. The result of the notice to the accused was that the next witness, PW 2 Raja Ram was prevented from turning hostile. In this connection it has been sagely observed in paragraph 22 in Zahira Habibullah Sheikh v. State of GujaratAIR 2006 SUPREME Court 1367 : It was significantly said that law, to be just and fair has to be seen devoid of flaw. It has to keep promise to justice and it cannot stay petrified and sit non-challantly. The law should not be seen to sit by limply, while those who defy it go free and those who seek its protection loose hope (See Jennison v. Backer (1972 (1) All ER 1006). Increasingly, people are believing as observed by SALMON quoted by Diogenes Laertius in Lives of the Philosophers laws are like spiders webs: if some light or powerless thing falls into them, it is caught, but a bigger one can break through and get away. Jonathan Swift, in his Essay on the Faculties of the Mind said in similar lines: Laws are like cobwebs, which may catch small flies, but let wasps and hornets break through. Because of these observations in Zahira Sheikh, that Courts are required not to sit limply but to pro-actively search for truth, I find no merit in another submission of the learned counsel for the applicant that as the prosecution had not given any application for getting the bail cancelled or for declaring the witness hostile nor had the witness himself given any statement on oath that some pressure had been made to bear on him, the Court was not justified in issuing a notice to the witness why he should not be prosecuted under section 181 IPC or for proceeding against the accused for cancelling their bail. Such a complaint is rarely likely to be made by a witness whose life or the life of whose dear one is under threat from the accused, as presently there is no effective system of witness protection in place. Learned AGA has also rightly placed reliance on the case of R. Rathinam Vs. State and another, AIR 2000 SC 1851 that not only are the State, the complainant or the witness entitled to move an application for cancellation of the bail, but an application for this purpose can be moved under section 439(2) Cr.P.C by any third party and even suo motu by the Court, if it is satisfied that the accused persons were trying to tamper with the witnesses and the Court can also in such circumstances pass an order cancelling the bail of the accused. The importance of the Court not shutting its eyes to reality and being proactive in the dispensation of justice has been emphasized by Fali S. Nariman, in his pithy little book, Indias Legal System, Can it be Saved? Nariman contrasts the architects impression of two stone images carved out on towers of the Bombay High Court. The Southern tower carries the stone image of Mercy, the British (Victorian) hand maiden of justice who is shown as blind, performing her task without fear or favour and does not go by the appearance of the parties arraigned before her. He however prefers the Indian ideal of justice with her flowing robes, a sword in her right hand and a pair of scales in the left, and the blind folds removed portrayed on the Northern tower. With clear eyes and a clear head, she sees things with unbiased vision, looking intently at the ever-tilting scales in her left hand. The tip of the sword is resting on the ground near her feet, so that after considering the evidence, she can wield the sword swiftly and strike the guilty party: being clear-eyed she cannot by mistake or accident hurt the innocent one! In fact in Mubarak Dawood Shaikh v. State of Maharashtra: 2004 (2) SCC 362, State of U.P. v. Amarmani Tripathi:2005 (8) SCC 21, and Kalyan Chandra Sarkar v. Rajesh Ranjan: 2004(7) SCC 528 it was observed that even when there is a prima facie apprehension of the likelihood of an attempt to derail the course of justice by tampering with the witnesses, the Court would be fully justified in cancelling the bail. Here as we have seen the eye witness, had actually turned hostile, and it was not only a case of an apprehension that an attempt would be made to tamper with the witnesses. For all the aforesaid reasons I see no illegality in the order of the learned Additional Sessions Judge dated 29.7.09 cancelling the bail of the applicants. The prayer for bail on behalf of the applicants is also rejected. The trial is however expedited. The Court concerned shall conclude the trial within three months of filing of the certified copy of this order. Before parting I would like to record my appreciation of the Additional Sessions Judge/ FTC-2, Kaushambi , Dr. Bal Mukund, who passed the impugned order for his timely and pro-active attempt at dispensing justice in the wake of the determined bid of the mischievous accused to subvert the course of justice. With this objective on the very date that the witness turned hostile, the Court issued notice to the witness as to why he should not be punished under section 181 IPC, encouraging the witness to come out with the true reason for his hostility, and thereafter by issuing notice to the accused asking them to explain why their bail be not cancelled, and eventually by cancelling their bail. This appears to have emboldened the subsequent witness PW-2 Ramraj to affirm his earlier version in the First Information Report, and to have prevented him from also turning hostile. The judge thereby fulfilled the mandate of the Supreme Court in letter and spirit, by not functioning as a passive tape recorder and by affirmatively searching for the truth. In view of the aforesaid remarks about the Judge, let a copy of the judgment be placed before the Inspecting Judge of Kaushambi. Let the copy of the order also be sent to the Judicial Training and Research Institute and the Legal Services Authority for communication to the concerned judicial authorities within a month as a guidance on how to act in a timely and proactive manner when dealing with situations where attempts are being made to brow beat witnesses and to compel them to turn hostile, as hostility of witnesses by threats or inducements is becoming the bane of our judicial system. The copy of this order should be sent to the Additional Sessions Judge/ FTC-2, Kaushambi within a week for compliance. The Registrar is also directed to circulate copies of the judgment before all the subordinate Courts within two months. Order Date :- 19.2.2010