STATE OF H P Vs. RAKESH BHARDWAJ

JUDGEMENT

(1.) The accused is facing trial, before, the learned Special Judge, Sirmour at Nahan, for, his committing an offence punishable under Sections 7 & 13 (1) read with Section 13 (2) of the Prevention of Corruption Act, 1988.

(2.) During the course of examination of PW-9, PW whereof is a member of the raiding party, who had red handed, caught, the accused, purportedly receiving illegal gratification, during the course of his being subjected to a trap, (i) the aforesaid PW rendered a testification qua SI Vikrant, clasping the accused, from, the right hand and SI Manvinder clasping him, from the left hand. However, in his previously recorded statement in writing, he has made a disclosure, of rather the accuseds' wrist being clasped, (ii) thereupon with PW-9 in the aforestated manner hence resiling , from, his previously recorded statement, (iii) thereupon the learned Public Prosecutor, made, a request upon the learned Special Judge, to, accord permission to him to confront him vis-'-vis his previous statement AND, to, cross-examine him. However, the aforesaid prayer was refused by the learned Special Judge. Consequently, the State of Himachal Pradesh, being aggrieved by the aforesaid order, has, approached this Court, through, the instant revision petition.

(3.) Apparently, PW-9 is a star prosecution witness AND upon his rendering a testification in consonance with his previously recorded statement in writing (i) would thereupon, render, empowered the prosecution, to, sustain the charge, (ii) whereas, his in the aforestated manner, resiling, from his previously recorded statement in writing, does, disable the prosecution, to sustain the charge, (iii) thereupon it was enjoined upon the learned Special Judge concerned, to, permit the Public Prosecutor concerned, to confront PW-9 vis-a-vis his previously recorded statement in writing and also to permit him to cross-examine PW-9. However, the learned Special Judge, declined, the prayer of the learned Public Prosecutor concerned. Necessarily, when hence the learned Public Prosecutor concerned, was, within his legal right, to make a prayer, upon the learned Special Judge concerned, to declare him hostile and also for permitting him to cross-examine PW-9, for hence enabling the prosecution, to sustain the charge, (iv) thereupon his making the aforesaid tenable and valid prayer, was, rather amenable to acceptance. Contrarily with the learned Special Judge, declining, it, in a slip shod manner, also without its assigning any reason, renders its refusal to be ridden with a vice, of, gross impropriety(s) and illegality(s) , (v) thereupon this Court is of the considered view that the instant petition, merits, its being allowed. The learned Special Judge concerned is directed to permit, the learned Public Prosecutor concerned, to, cross-examine PW-9 AND, to, permit him to confront him with his previously recorded statement in writing. Records be sent back forthwith. Needless to say that the defence shall also have an opportunity, to, thereafter cross-examine PW-9, also the accused may be permitted to adduce defence evidence, if any.