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PETITIONER: MANISH DIXIT AND ORS.

       Vs.

RESPONDENT: STATE OF RAJASTHAN

DATE OF JUDGMENT:       18/10/2000

BENCH: K.T.Thomas, S.N.Variava

JUDGMENT:

THOMAS, J. L.....I.........T.......T.......T.......T.......T.......T..J

     A jeweller of Jaipur (Gulshan Makhija) was murdered on his  way back home from his jewellery mart.  He was abducted by  two  persons who intercepted the Gypsy (Jeep) driven  by him on the night of 23.2.1994 with bags of jewellery kept in the  vehicle.   The abductors came on a motorcycle and  took the  jeweller to some distance where he was shot dead.   The assailants  decamped with a big booty consisting of valuable jewellery.   There  was  one more person in the  gypsy  -  a family  friend  by name Michael Hens (a German national  who had a short sojourn at Jaipur as a tourist).  He was jostled out of the gypsy before they abducted the deceased.

     Five persons were arraigned by the police for the said abduction  and  murder.  But the trial court convicted  only two  among them for the aforesaid offences (A1 Sharad Dhakar and  A2  Manish Dixit), and the other three were  acquitted. The High Court confirmed the said conviction only as against A2  Manish  Dixit, and the offence against A1 Sharad  Dhakar was  found to be limited to Section 411 of the Indian  Penal Code.

     More  details  of the occurrence are  these:   Gulshan Makhijas family was running the jewellery shop called Star of  India at Ashoka Hotel building, Jaipur.  He used to  be in  the  shop everyday till it was closed in the night.   On 23.2.1994  he called his mother over phone and told her that one  guest  would also be with him for dinner and that  both would  reach  home soon.  But the unfortunate  mother  could never see his son alive thereafter.  Gulshan Makhija and his German  friend together set out from his shop in a brand new gypsy  on the night after closing his shop.  He carried with him  a bulk of jewellery including gold, silver and valuable stones.  As they reached Janpath at Shyam Nagar (near Bansal Hospital)  the jeep was blocked by the two persons who  rode on  a  motorcycle.  One of them dragged Michael Hens out  of the jeep and then pointed a revolver at him.  He then pushed the  jeweller off the driving seat and himself occupied that seat and drove the jeep keeping the dump-founded deceased on the  side seat.  The jeep disappeared from the sight of  the sole  eye-witness  and  the jeep was followed by  the  other assailant on the motorcycle.

     The  German tourist (Michael Hens) somehow managed  to

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reach  the house of the deceased and divulged to the inmates thereof  in  his  broken  English  of  what  happened.   The brothers  of  the deceased took Michael Hens to  the  police station  (Sodala  at  Jaipur) and lodged a  complaint  which became  the basis of the FIR for offences under Section  365 and 379 of the Penal Code.

     On  the  next morning an anonymous phone call  reached the  officer-in-charge of Sodala police station that a white coloured  gypsy was lying abandoned at Dayal Nagar Extension (near  Gopalpur  Bypass).  Police then rushed to that  place and  found  the vehicle lying on a side road.  Dead body  of Gulshan  Makhija was seen in the vehicle with head injuries. Police noticed two bags of ornaments strewn on the road near the  vehicle  and  some other bags of ornaments  were  lying inside.

     On   8.3.1994   police  received  a  phone   call   at Idhayakapuri  police  station  that  an  attache  was  lying abandoned  near  Dhuleshwar Bagh Colony.  The police  traced out  the  spot  and found the attache and a bag  also  which contained  nearly forty-two kgs.  of ornaments, besides some documents  relating  to Gulshan Makhija.  Police lifted  the fingerprints noticed on the attache and the bag.

     On  14.3.1994  A1  Sharad Dhakar was arrested  by  the police.   On  the strength of information elicited from  him police  recovered some ornaments from a buried condition  on the  floor  of Universal Automobile Garage.  A  motorcycle (RJM  6373)  was also recovered pursuant to the  information collected from the same accused.

     After  Sharad  Dhakar  was apprehended police  was  in search of Manish Dixit (A2) but he was absconding even after proceedings  were taken against him under sections 82 and 83 of  the  Code of Criminal Procedure (for short the  Code). As he was not traced out despite such steps he was published as  a proclaimed offender.  However, in July 1994 police got sleuth  information that he was moving around in Delhi,  and they  made close watch to locate him.  On 12.7.1994 they got some  indication  that  he could be found at Alka  Hotel  in Connaught  Place, New Delhi.  The investigating officer made a  sudden  raid  at that place and caught him.   A  revolver (.455   bore    bawale    mark-4,  bearing  No.93255)  was recovered  from his person along with some live  cartridges. On  the  strength  of  information  elicited  from  him  the investigating team recovered three Kgs.  of silver ornaments from the basement of the house of Rahul Sharma (A4).

     The  said  arrest was followed by the arrest of  three more  accused  who  were  arraigned  as  A3  to  A5.   After completing  the investigation police charge-sheeted the case against  all  of them, Sharad Dhakar (A1) and  Manish  Dixit (A2)  for the main offences.  The trial court acquitted  the last  three  accused and convicted A1 Sharad Dhakar  and  A2 Manish  Dixit  of the offences under Sections 302, 364  read with  120B and also Section 34 of the IPC and sentenced them to  imprisonment  for life on the main count and  to  lesser term  for  the  other counts.  Both  the  convicted  persons preferred   separate  appeals  before   the  High  Court  of Rajasthan.   The State filed an appeal against acquittal  of the  three  accused.  Subsequently, PW30 Devender Sharma,  a Tehsildar  filed a petition in the High Court for  expunging certain  observations made against him by the trial judge in respect  of the evidence given by him.  All these were heard

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together  and  a Division Bench of the High Court  confirmed the  conviction  and sentence passed on A2 Manish Dixit  and dismissed  his appeal.  As for A1 Sharad Dhakar the Division Bench  found  that he could only be convicted under  Section 411 of the IPC and hence he was acquitted under Sections 302 &  364 read with 120 IPC.  The appeal filed by the State and the  appeal  filed  by  PW30 were  dismissed.   Hence  these appeals  by  Special Leave, one by A2 Manish Dixit  and  the other  by  the  State  against the acquittal of  A1  of  the offences  under Sections 302 and 364 read with 120B IPC  and the  third  by  PW3  Devender  Sharma  against  the  adverse observations made against him.

     When  the case was charge sheeted by the investigating officer this was not a case based on circumstantial evidence as  Michael Hens was cited as the solitary eye-witness.  But he  was not examined by the prosecution for which we did not get  any  satisfactory explanation at the outset.  But  Shri Sushil  Kumar  Jain,  learned  counsel   for  the  State  of Rajasthan,   submitted  to  us   under   instructions   that prosecution  could not examine that German tourist as he had already  left the country before the trial started.  We feel that  he  should  have been allowed to go back  only  on  an undertaking  that  he  would  return  to  India  for  giving evidence  in  this case, he being the solitary eye  witness. Why  the  prosecution  and the State did not  adopt  such  a precautionary measure is not explained to us satisfactorily. This  lapse rendered the prosecution to transform this  case to one of circumstantial evidence alone.  In this context we may  point out that even the High Court had observed that it was a sensational case pertaining to the robbery and murder for   which   various   teams  of   police   officers   were constituted.   The  lack  of alacrity shown  by  the  State agency  in a case which High Court described as  sensational deserves only reprobation from us.

     To  obviate the said difficulty the Public  Prosecutor in  the  trial  court made a futile attempt  to  render  the statement  made  by Michael Hens to the inmates  of  Gulshan Makhija  as evidence falling within the purview of Section 6 of  the  Evidence Act.  That attempt gained success  at  the trial  stage as the Sessions Judge approved the  contention. But  the  Division Bench of the High Court has very  rightly repudiated  such a contention.  As the counsel for the State did  not  make  even  an attempt to  render  such  statement admissible  in evidence, we are relieved of the task to deal with that statement.

     While dealing with the case against A2 Manish Dixit we noticed  that  the  following circumstances  were  projected against  him and were found established by the  prosecution: (1)  On 24.2.1994 he stayed at hotel Sanjay (Jaipur) in  the pseudonymous  name Ramesh Chander Sharma.  (2) He  absconded from  the  scene  soon  after A1 was  apprehended.   (3)  On 12.7.1994  he was arrested at Connaught Place, New Delhi and the revolver (described above) was taken from his person (4) When   PW-41  the  ballistic   expert  examined  the  bullet recovered  from the head of deceased Gulshan Makhija and the revolver  together he found that the said bullet could  only have  been  fired from the said revolver.  (5) On  18.7.1994 the investigating officers recovered three bags of ornaments from  the  basement  of  the house of A4,  pursuant  to  the information  elicited  from Manish Dixit.  (Those  ornaments were  in  the possession of the deceased at the time of  his abduction).

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     If  those  circumstances  were   established  by   the prosecution  there  is  little  scope to  contend  that  its cumulative  result  would  be different from  the  guilt  of Manish  Dixit  in the involvement of the murder  of  Gulshan Makhija.   The  sessions  court  and  the  High  Court  have concurrently  held  that  those   circumstances  were   well established by the prosecution with reliable evidence.

     The first circumstance was proved with the help of two items  of evidence.  One is the Register of hotel Sanjay  in which  there is an entry made on 24.2.1994 that a person who styled  himself as Ramesh Chander Sharma had stayed in the hotel.   Second  is the evidence of the hand-writing  expert who  said that the hand which wrote the said entry was  that of  Manish  Dixit.   Evidence of those two  items  has  been accepted  by  the two courts.  But Sri U.R.  Lalit,  learned Senior  Counsel  who argued for Manish Dixit contended  that the  said entry by itself is of no avail on the language  of Section 34 of the Evidence Act.

     True   Section  34  contains   the  rider  that  such statement  shall not alone be sufficient evidence to  charge any  person  with  liability.   In   the  first  place  the provision deals only with books of accounts.  It primarily pertains  to pecuniary transactions.  The expression  books of  accounts  means  books in which merchants,  traders  or businessmen  generally keep their accounts i.e.   statements of  debits and credits or receipts and payments.  A register kept  at  the  counter  of  a hotel  need  not  contain  any statement  of  account.   So  until it is  shown  that  such register  also  pertained  to   the  pecuniary  transactions involving  the  customers  of the hotel the same  cannot  be treated as a book of accounts.  In the second place, even if it is assumed that a register kept in a hotel can be treated as  a book of accounts, the entry therein cannot become  the sole  premise to charge a person with liability.  The  entry found  in the register kept at Sanjay Hotel can only show  a circumstance  that A.2 (Manish Dixit) has written in it  the name  Rakesh  Chander  Sharma as the person  who  occupied particular  room  in  the hotel on 24.2.1994.  Why  did  A.2 write such a name in the register on the said date which was the  immediately  following  date of the murder  of  Gulshan Makhija.   He only knows why he wrote a different name.   In the  absence  of any explanation from him it is open to  the court  to draw an inference that A.2 (Manish Dixit) had some reasons  to  conceal  his identity to the hotel  people  and hence he wrote a pseudonymous name in the register.

     Regarding the circumstance that Manish Dixit absconded from  the  scene it is contended that absconding  by  itself need  not necessarily lead to the inference of culpable mind against  the  absconder.   Learned  counsel  submitted  that Manish  Dixit was reporting to the police till 6.3.1994  and hence  he  could not be treated as an absconder at all.   In this context it has to be pointed out that the disappearance of  A.2 (Manish Dixit) from the locality was contemporaneous with  the  apprehension of A.1 (Sharad Dhaker).  Even  after resorting  to legal measures to trace out A.2 (Manish Dixit) he  remained  underground until he was caught unawares.   In the  aforesaid broad features the absconding of A.2  (Manish Dixit)  cannot be side-stepped as an innocuous circumstance. Of  course absconding by itself has no decisive implication, nevertheless  it  has utility to form a link to  concatenate the full chain.

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     On  the  evidence  pertaining to the recovery  of  the revolver  from the person of A.2 (Manish Dixit) on 12.7.1994 Shri  U.R.  Lalit made a two-pronged attack.  First is  that the  very recovery is illegal as it was done in violation of the  legal  requirements.   Second  is  that  the   revolver produced  in court as recovered from A.2 (Manish Dixit)  was in fact found lying in the Gypsy on 24.2.1994.

     Before dealing with the said argument we may point out that  there is no dispute that the said revolver is the very same revolver used by the assailant (whoever would have been he)  for  killing  Gulshan Makhija.   This  premise  remains unassailable  in view of the unimpeachable evidence given by the   ballistic  expert  PW-41   (DR.   P.S.   Manocha)  who testified  that  the bullet recovered from the head  of  the deceased  was closely examined and found to have been  fired from  Exhibit  W-1  revolver itself.  Of  course  Shri  U.R. Lalit made a bid through the written arguments submitted, to contend that the said opinion of the ballistic expert cannot become  conclusive  evidence  to show that the  said  bullet could  only have been fired from the said revolver.  He also made  an  attempt to show that the bullet forwarded  to  the expert  need  not have been the same as recovered  from  the head of the deceased.

     We   are   not  disposed  to  countenance   the   said far-fetched  contention  at this late stage particularly  in view  of the concurrent finding arrived at by the two courts on the said factual issue.  That apart, even the alternative contention of the defence is that the revolver was collected from  the  scene of occurrence itself.  Hence it is an  idle exercise  to  delineate  the  contention  that  a  different revolver  might have been examined by the expert.  Moreover, it  is  unnecessary to repeat the reasons propounded by  the expert  to reach that conclusion because the trial court and High Court have dealt with them in great detail.

     If  the  said revolver was found in the possession  of A.2  (Manish  Dixit) its forceful legal implication  against@@      JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ him  regarding  his  involvement in the  murder  of  Gulshan@@ JJJ Makhija  cannot  be  gainsaid.  Knowing the  extent  of  its implication learned counsel focussed his attack on that very circumstance itself.  At any rate, we are bound to deal with the  arguments  focussed on the said circumstance, for,  the said  circumstance  has a decisive effect.  If the  argument addressed  by  the  learned  counsel   on  that  score  gets acceptance  the  benefit of it would help the accused  in  a great measure.

     According  to the learned senior counsel, recovery  of the  revolver was in violation of Sections 165 and 166(3) of the Code.  Regarding Section 165 it is admitted that for the search  conducted at Alka Hotel, Connaught Place, New Delhi, no  independent  witness of the locality was called  despite the  fact that it is a very populous area of the metropolis. True  no  independent witness has affixed signature on  Ext. P.80 - Seizure Memo.  The police officer said that they made an  effort  to  secure at least two persons  from  Connaught Place  but  none  was  willing to be a witness.   It  is  no surprise that any of the traders of Connaught Place would be unwilling  to  offer his service as a witness to any  police action  if  he  knew  that he would have  to  bear  all  the

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sufferings thereafter, to give evidence in a criminal court, more  so,  when that court would be at a far off place in  a different State altogether.  City people are quite conscious of  such  consequences  and they would normally be  wary  to signify  to  such  witnessing.  The evidence of  the  police officer  that  nobody was willing to stand as a  witness  in Ext.P-80 cannot, therefore, be spurned down as improbable.

     Section  166  of  the Code deals  with  searches  made outside   the  limits  of   the  police  station  concerned. Sub-section (1) thereof enables the officer in charge of one police  station  to require the services of the  officer  in charge  of  another police station.  It is optional  on  the former  to  do  so.  Sub-section (2) enjoins a duty  on  the latter  to  conduct the search on being so requisitioned  by the  former.  Sub-section (3) and (4) are relevant as  PW-35 (Umed  singh) and PW-41 (DR.  P.S.  MANOCHA) (Himmat  Singh) (both  investigating officers from Jaipur) opted to  conduct the  search for A2 ((Manish Dixit) at Delhi, by  themselves. Those two sub-sections read thus:

     (3)  Whenever  there  is reason to believe  that  the delay  occasioned  by  requiring  an officer  in  charge  of another  police  station to cause a search to be made  under sub-  section (1) might result in evidence of the commission of  an  offence  being concealed or destroyed, it  shall  be lawful  for  an officer in charge of a police station  or  a police  officer making any investigation under this  Chapter to  search, or cause to be searched, any place in the limits of  another police station in accordance with the provisions of  section 165, as if such place were within the limits  of his own police station.

     (4)  Any officer conducting a search under sub-section (3) shall forthwith send notice of the search to the officer in  charge of the police station within the limits of  which such  place is situate, and shall also send with such notice a  copy of the list (if any) prepared under section 100, and shall  also send to the nearest Magistrate empowered to take cognizance of the offence, copies of the records referred to in sub- sections (1) and (3) of section 165.

     It  is evident from sub-section (3) that it permits an investigating  officer  belonging to one police  station  to search any place falling within the limits of another police station  in  certain exigencies.  One such exigency is  when there is possibility of delay in requisitioning the services of police personnel of another police station and such delay could  defeat  the  very  purpose of the  search,  then  the investigating  officer  can proceed to that other place  and conduct  the  raid or search by himself.  However,  when  he does  so he is obliged to conform to certain requirements as prescribed  in sub-section (4).  One is that he shall inform the  officer in charge of the other police station and  send him  a  copy  of  the list prepared by him  in  the  search. Second  is  that  he should send the copies  of  the  search documents  to the nearest magistrate who has the  competence to take cognizance of the offence.

     What  is the basis of the argument that the  aforesaid requirements  have not been complied with in respect of  the search  made by the investigating officers at Alka Hotel  in Connaught  Place,  New Delhi?  PW-37 (Sanjay Aksetriya)  the Circle  Officer of the police station under whose leadership

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the   raid  was  conducted  at   Alka  Hotel  has  said   in cross-examination  that he had given the information to  the higher  officer of the area who agreed to inform the  police officers  of  Delhi  at their own level.  There  can  be  no grievance  that a copy of the search has not been  forwarded to the court concerned.

     On  the aforesaid reasons we do not find any merit  in the contention that the search made at Alka Hotel was not in@@     JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ conformity  either  with Section 165 or Section 166  of  the Code.

     The  other contention is that a revolver was found  in the  Gypsy on 24.2.1994 and if that was with the police  the recovery  of  revolver  from A2 at Alka Hotel  on  12.7.1994 could only have been the result of a planting of the firearm at  the  hotel.   The basis for the said contention  is  the testimony of PW-4 (Bhanwar Lal), PW-6 (Rajendra Kumar), PW-9 (Vijay Kumar) and PW-19 (Lala Ram Yadav).

     It  is  unnecessary to deal with the evidence of  PW-4 and PW-9 as Public Prosecutor had treated them as hostile on the  ground  that they tried to help the accused by  stating so.  PW-19 is not of much use because all that he said, that too  in  cross-  examination,  was that  he  had  seen  one revolver  type  object  lying on the front side.   He  then added that it was not fully visible to him.

     But  the  evidence of PW-6 (Rajendra Kumar) cannot  be bypassed  as the other three witnesses because even in chief examination  itself that witness has said like this:  There I  saw one Gypsy being parked in which the items of gold and silver were lying and below the foot rest of the steering of the rear seat a pistol of iron colour was lying and that was seized by the police.

     Shri  U.R.  Lalit, learned senior counsel, who  argued for  Manish  Dixit contended that the aforesaid evidence  of PW-6  is binding on the prosecution particularly because the Public  Prosecutor did not declare him hostile and no effort was  made  by him to show what the witness said was  untrue. Shri  Sushil  Kumar  Jain,  in   answer  to  that  argument, submitted  that  the  mere lapse on the part of  the  Public Prosecutor  for not declaring PW-6 as hostile should not  be taken  as a conscious admission made by the said  Prosecutor that  what  the witness said on that score was  true.   Shri Sushil Kumar Jain highlighted two aspects in order to ignore the  above evidence of PW-6.  First is that the said witness was not an attestor nor a witness in Ext.P.18 Memo which was prepared relating to the Gypsy.  Second is that PW-6 was not cited  nor  examined to say anything about the Gypsy or  its seizure.   According  to  the   learned  counsel,  PW-6  had overshot  by  saying something which was not the  point  for which  he was cited by the prosecution and it was a lapse on the  part  of the Public Prosecutor who perhaps  would  have inadvertently missed hearing the witness stating that fact.

     We  may look at this aspect from a broader angle.   On 24.2.1994  a team of Rajasthan Police found a Gypsy lying on the  roadside  and  they  prepared Ext.P.18  Memo.   If  any firearm  was  then lying in the Gypsy why should the  police suppress  that  fact  in the document  which  they  prepared contemporaneously?  It should be remembered that there was a

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number  of  police officers and a number of persons  looking on.   In  such a situation the police would  most  certainly have mentioned in Ext.P.18 if there was any firearm lying in the  Gypsy  because it is not that easy to suppress  such  a vital  material.  That apart, it is too much to assume  that the  police  concealed that crucial weapon in Ext.P.18  with the  far sighted object of using that weapon for planting it elsewhere  five  months  later  for  a  concocted  and  fake recovery.   If  actually  a firearm was found lying  in  the Gypsy  on  24.2.1994,  it is inconceivable that  the  police would not have taken it into custody and forwarded it to the Forensic  Science Laboratory to check up whether it was  the same  firearm  which  the  assailant  could  have  used  for murdering  the  deceased.  In this context we may note  that Ext.P.18  which  was prepared on 24.2.1994 relating  to  the Gypsy was promptly forwarded to the court.

    All the above broad features cannot be allowed to submerge to the bottom and a concurrent finding made by the two courts on that aspect be thrown overboard merely because of an uninvited oral vibration made by PW-6. The least which can be commented on the Public Prosecutor who examined that witness, for not making any attempt to probe into that answer is that it smacks of irresponsibility in conducting the prosecution if he was an experienced Public Prosecutor.

     The next circumstance is the recovery of quite a large number of ornaments on the strength of the statement made by Manish  Dixit to the investigating officer.  That  statement attributed  to the accused is convincingly clear that it was he   who  concealed  such  ornaments  in  the  house  of   a co-accused.  The only argument raised by Shri U.R.  Lalit on that  aspect  is that the police had already  conducted  the search  of the premises of that co-accused immediately after his  arrest.  There was a long interval between that earlier search  and  the  recovery  effected by the  police  on  the strength  of  the  statement  made by  Manish  Dixit.   Very probably  Manish  Dixit  would have chosen such a  place  to conceal  the ornaments on a thinking that the said place  is safer  than  other  places as the possibility  of  a  second search at the same place would be too remote.

     We are, therefore, not persuaded to interfere with the conviction passed on A2 for the offence found against him.@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ

     About A.1 (Sharad Dhakar) the proved circumstances are too  scanty  for  coming to the conclusion that he  too  was involved  in  the abduction and murder of  Gulshan  Makhija. Shri  Sushil  Kumar Jain relied on the circumstance  that  a blood stain was noted by the Forensic Sciences Laboratory on the  motorcycle  seized  by  the   police  pursuant  to  the information  received  from A.1 (Sharad Dhakar)  during  his interrogation.   The said blood stain was found to be of O group.   (The blood group of the deceased was also O).  We would assume that the said circumstance has been established by the prosecution, but that is not decisive enough to point to  the  involvement  of that accused in the murder  of  the deceased.  If there were other circumstances, apart from the recovery  of  some jewellery belonging to the deceased  from the  possession  of  this  accused,  perhaps  the  aforesaid circumstance  (relating  to  the blood stain  found  on  the motorcycle)  would have lent support to an inference against him.  As it is, we find it difficult to reverse the order of

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acquittal passed in favour of A.1 (Sharad Dhakar) in respect of  the major counts of offences.  Appeal filed by the State against A.1 (Sharad Dhakar) is only to be dismissed.

     This  takes  us  to the appeal filed by  one  Devendra Kumar  Sharma (who was examined in this case as  prosecution witness    PW.30)  complaining  of  the  observations  made against  him  by the trial court as well as the High  Court. When  he  was examined in court he was holding the  post  of Sub-Registrar,  Jaipur.  On 9.6.1994 he was holding the post of  Tehsildar,  Jaipur.   (Perhaps in that capacity  he  was ex-officio  Executive  Magistrate also).  His services  were requisitioned  by  the Investigating Officer for  conducting the  test  identification of jewelleries recovered  in  this case.   When  he  was examined as  prosecution  witness  for speaking  to  the  said   test  identification,  the  Public Prosecutor  during  the examination-in-chief elicited a  few facts from him pertaining to those aspects and the documents prepared  in  connection therewith were marked through  him. When  he  was  cross- examined he was asked about  the  seal impressions  found  on  the   packets  which  contained  the recovered  jewelleries.  He answered that he did not compare the  impression with any other seal.  He was then confronted with the memo of seizure (Ext.P.28) and he was asked whether he  had recorded the fact therein truly.  He answered  thus: It might have been correctly recorded in that memo or I may not  be able to recollect. After the cross- examination was over  the Public Prosecutor did not put a single question in re-examination.  This was either because he did not find any need  to elicit any explanation from the witness or  because the  Public  Prosecutor was inattentive to the  implications regarding  the  answers elicited by the cross-examiner  from that witness.

     But the trial court came down very harshly against the said witness and made the following castigating observations against him in the judgment:

     The  statement  of  such a responsible  officer  like Tehsildar  opposing  the  Ferd  made  by  him  shows  either ex.P-20,  21 and 28 were written wrong or he has made  wrong statement  before  the  Court.  In any  circumstances,  this action  is highly unexpectable from the responsible  officer of  such  status.  Therefore, I would like to bring  to  the notice  of  the  State  Government   that  in  this   regard appropriate  action should be taken against him, so that any officer  does not make such a false report or does not  give false evidence in the Court.

     When  PW-30  noticed  the   disparaging  remarks  made against him he moved the High Court under section 482 of the Code to have those remarks expunged.  But the Division Bench of  the High Court, after dealing with the evidence given by the  witness  pointed  out that even  after  refreshing  his memory   the   witness   did    not   reconcile   with   the inconsistencies  in  his statement with the contents of  the documents  prepared  by him.  The Division  Bench  thereupon made the following observations:

     It  is  needless to mention that the role of  persons who  conducted test identification parade is very important. He  is  expected  to take all  necessary  precautions  while conducting  test  parade.   He is also  required  to  depose correctly  before  the court of law and not to  deliberately make   vague,  confusing,   inconsistent  and  contradictory

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statements  against  the contents of the documents  prepared and  order  passed  by him.  The observations  made  by  the learned  trial  judge do not amount to abuse of  process  of law.   We  therefore, do not find any valid  and  sufficient reason  to expunge the impugned observation/remarks made  by the  trial court against him.  Hence this Cr.Misc.  Petition filed under s.482 Cr.P.C.  deserve to be dismissed.

     In  our  opinion,  both the trial court and  the  High Court  should  have  avoided making such  unsavory  comments against  a  witness  in such a manner as to  entail  serious implications on his career, merely because the answers which were  extracted  from him through cross questions  contained contradictions  or  inconsistencies.   It should  have  been remembered  that PW-30 (Devendra Kumar Sharma) was cited  by the prosecution and the chief examination was conducted by a Public  Prosecutor.  Once the witness was cross-examined the Public  Prosecutor had an opportunity under law to put  such questions  as  were  necessary for explanation  of  matters referred  to in cross-examination.  It is  ununderstandable to  us  why  the  Public Prosecutor did  not  put  a  single question  at re-examination stage, at least for the  purpose of  giving  him  opportunity to explain  such  incongruities which fell from his mouth during cross-examination.

     If the trial court felt that some of the answers given by   that   witness  during    cross-examination   were   so inconsistent  or contradictory and that such answers per  se required  judicial castigation the court also had a duty  to invoke  its powers envisaged in Section 165 of the  Evidence Act.   The width of the powers of the court to put questions is  almost  plenary  and  no party  can  possibly  raise  an objection  thereto.  This can be discerned from the language employed in the first limb of the section.  It reads thus:

     The  Judge  may,  in order to discover or  to  obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties, about  any  fact relevant or irrelevant;  and may order  the production  of  any  document  or thing;   and  neither  the parties  nor  their  agents shall be entitled  to  make  any objection  to  any such question or order, nor, without  the leave  of  the Court, to cross-examine any witness upon  any answer given in reply to any such question.

     This  Court  has indicated the very wide dimension  of the  powers  of the court under section 165 of the  Evidence Act  in State of Rajasthan vs.  Ani {1997 (6) SCC 162}.   We extract  the following observations which would amplify  the position:

     The  said section was framed by lavishly studding  it with  the word any which could only have been inspired  by the  legislative  intent  to confer unbridled power  on  the trial  court to use the power whenever he deems it necessary to  elicit  truth.  Even if any such question  crosses  into irrelevancy  the  same  would   not  transgress  beyond  the contours  of  powers of the court.  This is clear  from  the words  relevant or irrelevant in section 165.  Neither  of the  parties  has any right to raise objection to  any  such question.

     In  the present case when the Public Prosecutor failed to  utilize  the  opportunity afforded by law to  ask  PW-30

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(Devendra  Kumar Sharma) such questions as are necessary for explanation of the matters referred to in cross-examination, and  when the trial judge also failed to invoke the  plenary powers to put such questions as he should have put regarding the answers given in cross-examination it was unfair, and we may  say  uncharitable  to  a witness  to  shower  him  with judicial  reprobations  in the judgment.   Such  disparaging remarks  and  the direction to initiate departmental  action against  him could have very serious impact on his  official career.

     Even  those apart, this Court has repeatedly cautioned that  before  any castigating remarks are made by the  court against  any  person, particularly when such  remarks  could ensue  serious  consequences  on the future  career  of  the person concerned he should have been given an opportunity of being heard in the matter in respect of the proposed remarks or   strictures.    Such  an   opportunity  is   the   basic requirement,  for, otherwise the offending remarks would  be in  violation of the principles of natural justice.  In this case  such  an opportunity was not given to PW-30  (Devendra Kumar  Sharma).  [(State of U.P.  vs.  Mohd.  Naim {1964 (2) SCR  363},  Ch.  Jage Ram vs.  Hans Raj Midha {1972 (1)  SCC 181},  R.K.   Lakshmanan vs.  A.K.  Srinivasan {1975(2)  SCC 466},  Niranjan  Patnaik vs.  Sashibhusan Kar {1986 (2)  SCC 569},  State  of Karnataka vs.  Registrar General {2000  (5) Scale 504}].

     It  is  apposite  in  this   context  to  extract  the following  observations  made  by this Court in  Dr.   Dilip Kumar Deka v.  State of Assam {1996(6) SCC 234}:

     We  are surprised to find that in spite of the  above catena  of  decisions of this Court, the learned  Judge  did not,  before making the remarks, give any opportunity to the appellants,  who were admittedly not parties to the revision petition  to defend themselves.  It cannot be gainsaid  that the nature of remarks the learned Judge has made, has cast a serious   aspersion  on  the   appellants  affecting   their character  and  reputation and may, ultimately affect  their career  also.  Condemnation of the appellants without giving them  an opportunity of being heard was complete negation of the fundamental principle of natural justice.

     We  therefore unhesitatingly allow the appeal filed by PW-30  (Devendra  Kumar Sharma) and order expunction of  all the  disparaging remarks made against him by the trial judge as  well the High Court in the judgments impugned before us. The  direction  to proceed against him departmentally  would also stand deleted.

     The appeals are disposed of accordingly.