CENTRAL BUREAU OF INVESTIGATION Vs. ARUN KUMAR KAUSHIK

JUDGEMENT

(1.) Central Bureau of Investigation has approached this Court under its inherent jurisdiction, under Section 482 Cr. P.C., with the prayer to quash the order-dated 5-10-05 passed by the Additional Sessions Judge, Ghaziabad in S.T. No. 608 of 2005, C.B.I, v. Arun Kumar Kaushik and others, under Sections 302, 307, 323 I.P.C., P.S. C.B.I. SCB Lucknow. By the impugned order, the trial court has rejected the application 19 Ka by which the public prosecutor C.B.I, wanted to cross-examine P.W. 2 S.K. Goyal without declaring him hostile under Section 162 Cr. P.C. in respect of his statement recorded under Section 161 Cr. P.C.

(2.) The factual matrix of the case is that Miss. Smita Bhaduri D/o Shri S.K. Bhaduri R/o Modipuram, Meerut was murdered on 14-1-2000 and in that incident one Mohit Tyagi S/o Shri R.K. Tyagi received injuries. The malefactors of the said incident were the police officers Arun Kumar Kaushik (Inspector), Bhagwan Sahai and Surendra Kumar (Constable), all posted at P.S. Daurala, District Meerut. The deceased had died due to firearm injury whereas Mohit Tyagi received injuries by physical assault. The F.I.R of the said incident, initially, was registered as crime No. 14/2000 at P.S. Daurala which was subsequently transferred to C.B.I. for investigation vide notification dated 26-4-2000 issued by Government of India and by Government of U.P. notification dated 17-1-2000. In pursuance of the orders passed by both the Government, the CBI registered RC2(5/2000) with S/I.C/4 Lucknow Branch on 4-5-2000. The investigation culminated into a charge-sheet filed in the court of Special Judicial magistrate, C.B.I. Ghaziabad on 3-3-04 against the above named three police personnel. The case was committed to the Court of Session were the charges were framed against the above named accused persons under Sections 302, 307, 323/34 I.P.C on 6-4-05, While P.W. 2 S.K. Goyal was being examined-in-chief, the public prosecutor C.B.I. filed an application before the trial court for cross examining P.W.2 S.K. Goyal and contradict him with his previous statement recorded under Section 161 Cr. P.C. The copy of the said application, annexure No. 2 to the present application indicates that the aforesaid application was filed with following contents: In, The court of Additional Sessions Judge S.T. No. 608 of 2005 State v. Arun Kumar Kaushik and others ........Accd. Humble petition on behalf of prosecution may it please your honour d. That the prosecution intends to draw the attention of the witness P.W. 2 S.K. Goyal with reference to his 161 Cr. P.C. statement without declaring him hostile. It is therefore prayed that permission may kindly be granted to draw the attention of the witness without declaring him hostile. Spl. P.P. C.B.I. 7-9-05.

(3.) The said application filed by C.B.I. was rejected by the Additional Sessions Judge/Special Judge C.B.I., Prevention of Corruption Act U.P. East, Ghaziabad vide his impugned order dated 5-10-05 annexure No. 1 to this application. Aggrieved by the aforesaid order, the C.B.I. has filed the present application, with the prayer of quashing the impugned order so that they can cross-examine P.W. 2 S.K. Goyal without declaring him hostile.