KHOIROM
Digitally signed by
IN THE HIGH COURT OF MANIPUR
KHOIROM
BIPINCHAN
BIPINCHANDRA SINGH
AT IMPHAL
Date: 2024.09.26
DRA SINGH
16:19:20 +05'30'
CRIL. PETN. No. 53 of 2024
Ningthoujam Tomchou Singh, aged about 64 years,
S/o Late N. Chandramai Singh of Thangmeiband
Meisnam Leikai, P.O. Lamphel, P.S. Imphal, District
–
Imphal West, Manipur.
Petitioner
…
- Versus -
1. Superintendent of Police, CBI, SCB, Kolkata
–
nd
CGO Complex, Ground & 2
Floor, “A” Wing DF
Block, Salt Lake, Kolkata 700064 And Others.
–
2. Nongmaithem Jinnty, aged about 28 years, D/o,
N. Kheroda of Yaiskul Moirangkhom Sougaijam
Leirak, Imphal West, Manipur.
3. Kamei Ileen, aged about 56 years, D/o Late
Kamei Kumar of Langthabal Chingthak near
Manipur University, Canchipur, Imphal West,
Manipur.
4. Pheroijam Robinson Singh @ Boicha, aged about
34 years, S/o Ph. Ibohal Singh of Canchipur near
Manipur University, Gate, Imphal West, Manipur.
5. Phoiroijam (O) Longjam Ningol Landhoni Devi,
aged about 67 years, W/o Ph. Ibohal Singh of
Canchipur near Manipur University, Gate, Imphal
West, Manipur.
6. Pheiroijam (N) Karam (O) Romita Devi, aged
about 43 years, D/o Ph. Ibohal Singh of
Kwakeithel Thiyam Leikai, P.O. Imphal, P.S.
Lamphel, Imphal West District, Manipur.
…Respondent
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B E F O R E
HON’BLE MRS. JUSTICE GOLMEI GAIPHULSHILLU
For the Petitioner : Mr. S. Abung, Advocate
For the Respondents : Mr. W. Darakishwor, Senior PCCG
Mr. M. Gunedhor, Advocate
Date of Hearing : 20.09.2024
Date of judgment &Order : 26.09.2024
JUDGMENT & ORDER
(CAV)
[1] Heard Mr. S. Abung, learned counsel appearing for the
petitioner, Mr. W. Darakishwor, learned senior PCCG appearing for the
respondent No. 1 and Mr. M. Gunedhor, learned counsel appearing for
the respondents No. 2 to 6.
[2] The present petition has been filed under Section 482 of
Cr.P.C. read with Section 528 of BNSS with the following prayers:
(i) Kindly admit this Criminal Petition;
(ii) Kindly quash and set aside the order dated
14.08.2024 passed in Misc. Case No. 276 of 2024
of CJM, Imphal West and
(iii)
Any order, direction as deemed fit by this Hon’ble
Court.
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[3] The present petitioner is the father of victim, Late
Ningthoujam Babysana Chanu, whose right to cross-examine the 2
(two) witnesses on his behalf by counsel called by the Ld. CJM,
Imphal West, was denied violating the right under Section 138 of the
Indian Evidence Act which governed the law of examination of
witness. Therefore, he filed an application being Misc. Case No. 276 of
2024 before the Ld. CJM, Imphal West (Annexure A/1). However,
–
vide order dated 02.08.2024, the application was rejected by the Ld.
CJM, Imphal West without applying judicial and common sense that
the right to call witnesses for examination by Ld. CJM, Imphal West is
governed by Section 138 of Indian Evidence Act. This law is not made
to exercise her discretionary power, it is for both sides (Annexure
–
A/2).The operative portion of the said order is extracted herein below:
“Perused the record. Upon perusal of the record, this
Court vide order dated 15-01-2024 and 19-03-2024 had
examined 2 (two) experts namely Shri Sujit Kumar Mallick and
Dr.S. Joychandra Singh respectively in c/w their Report in the
referred CBI case. The same may be for the satisfaction of the
Court in c/w the Report submitted by the above named
Experts. The prayer for the petitioner/informant in the present
application is for recalling the said Court witnesses/Expert for
cross-examination. This Court is of the view that in the
referred CBI case, the Investigating Authority after thorough
investigation had submitted Final Report and not a charge
sheet and the case is pending for hearing. The proceeding as
such is not trial and there should not be question for
examination of any witnesses or cross-examination of the said
witnesses. If in case, the informant is not satisfied with the
Final Report/expert opinion and could not accept and have
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objection to the Final Report submitted by the CBI (the
investigating authority), the only option is to file a Protest
petition and nothing else.
As a result, the prayer of the petitioner/informant for
recalling the two court witnesses for cross-examination is
hereby rejected.”
[4] The learned counsel appearing for the petitioner submits
that under Section 138 of the Indian Evidence Act, the Ld. CJM,
Imphal West called the witnesses and examined them, as such there
is no difference whether it is Court witnesses or otherwise. The law
provides examination-in-chief, cross-examination and re-examination,
as such cross examination to the other party is a legal right which
cannot be barred by discretionary power of any judicial Magistrate.
Vide judgment and order dated 18.03.2024 passed in
Criminal Appeal No.(s) 1664-1665 of 202
4, the Hon’ble Apex Court
held that “The normal rule is that witnesses shall be examined in the
order laid down in Section 138 of the Indian Evidence Act, 1872. The
”
-
Hon’ble Apex Court further held that recording only the examination
in-chief without recording cross-examination is contrary to law.
[5] The learned counsel appearing for the petitioner also
submits that it is well settled law that any witnesses examined by the
Court, the opposite party shall have the right to cross-examine,
otherwise the value of evidence adduced from the person called for
giving evidence shall be one sided which eventually affect the principal
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of law as laid down in legal maxim audi alteram partem. It is against
the law that a party in a Criminal Misc. Case is not allowed to cross-
examine the witnesses called by the Court.
[6] Further, the learned counsel appearing for the
petitioner submits that the witnesses need for cross-examination
by the victim represented counsel since they have done some
unethical acts while forensic examinations were conducted in their
capacities, for instance, they deliberately ignored the confirmation
of blood sample of the victim girl, one by doing from blood sample
found in victim’s underwear and not doing from the direct blood
sample of victim girl and the other belatedly done and the sample
was made expired. Thus, two of them brought to the conclusion of
idential value of the present
“possible case” and destroyed the ev
case. Unethical mixing of blood samples need to be cross-examined
and whether a retired person be allowed by law to give expert
opinion etc.
[7] The learned counsel appearing for the respondents Mr.
M. Gunedhor submits that under Article 311 of the Indian Evidence
Act, the Court can call, at any stage of the trial, the witnesses as Court
witnesses and for Court’s reference for the particular matter. In the
present case of the subject matter, the Ld. CJM, Imphal West called
the two experts just to confirm the opinion given by the expert in
connection with the present case i.e. during the course of hearing of
the FR submitted by the prosecution (CBI), mention is made here that
after handing over the case for investigation to the CBI and the CBI
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after due investigation submitted the case on FR. However, the
petitioner filed protest petition against the said FR and the Ld. CJM is
hearing the parties, in that regard. The Ld. CJM for her reference
called the two experts and accordingly, examined them as CW 1 and
–
CW 2. Both the witnesses were not cross-examined. The present
–
petitioner filed an application before the Ld. CJM to allow him to cross-
examine the said two Court witnesses. The Ld. CJM, after hearing the
learned counsels for the parties, rejected the prayer of the petitioner.
Article 311 of the Indian Evidence Act reads as follows:
“Any Court may, at any stage of any inquiry, trial or
other proceeding under this Code, summon any person as a
witness, or examine any person in attendance, though not
summoned as a witness, or recall and re-examine any person
already examined; and the Court shall summon and examine
or recall and re-examine any such person if his evidence
appears to it to be essential to the just decision of the case.”
[8] The learned counsel appearing for the respondent No. 1
Mr. W. Darakishwor, senior PCCG submits that the stage of the case is
not the trial but the stage of hearing of the final report submitted by
the Investigating Officer and calling and examination of the said two
experts were just for reference of the Ld. CJM Court nothing else. The
petitioner can as such the right to cross-examine the experts in the
later stage of the trial.
[9] Perused the impugned order as well as the statements of
the CW 1 and CW 2. On perusal of the impugned order as well as
– –
the statements of the two CWs, it is evident that the Ld. CJM Court
called and examined just to compare the documents available in the
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record i.e. the report submitted and to ascertain the same with the
documents brought by t
he said two witnesses (experts) for Court’s
reference.
It is further seen that the proceeding as such at this
stage is not a trial but, at the stage of hearing of the said final report
submitted by the Investigation Authority, as such question for re-
examination or cross-examination of the said two witnesses is not
called for.
[10] Taking into consideration the above factual position with
the above discussions made therein, the present petition filed by the
petitioner is dismissed and disposed of.
JUDGE
Bipin
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