Further Examination-In-Chief Cannot Be Allowed To Fill Lacunae In Case Under Prevention Of Corruption Act: Telangana High Court Clarifies

In a case pertaining to challenge of conviction under the Prevention of Corruption Act, the Telangana High Court held that any attempt by the prosecution to introduce “further chief examination” after the cross examination to fill lacunae of the evidence is not permitted under the Indian Evidence Act.

Justice K Surender stated that “Under Sections 137 and 138 of the Indian Evidence Act, once the chief-examination is complete, the witness can be cross-examined. Thereafter, the examination of a witness subsequent to the cross-examination would be re-examination. The re-examination can only be for the purpose of explaining the matters referred to in the cross-examination. Only in the event of a new matter being introduced by the permission of the Court during re-examination, would the adverse party have the opportunity to further cross-examine the witness.”

The court went to discuss that the limited scope of re-examination and did not approve of the prosecution conducting further examination in chief.

“once the examination-in-chief is complete, the question of 'further chief-examination' does not arise. The course adopted by the prosecution and permitted by the Court is not in accordance with the Evidence Act. The prosecution cannot adopt the method of further chief-examination to fill in other lacunae, and the scope of re-examination is confined. To overcome such confined scope of re-examination, permitting the prosecution to conduct further chief examination is not the procedure that can be followed and is contradictory to the scheme of examination of witnesses under Sections 137 and 138 of the Indian Evidence Act.”

The present appeal was filed to question the conviction of appellant under Section 7 and Section 13(d) read with Section 13(2) of the Prevention of Corruption Act 1988. He was sentenced to rigorous imprisonment for a period of six months and one year.

The appellant was a Special Revenue Inspector in the office of the Mandal Revenue Officer (MRO) and the complainant, a GPA holder Nawab Mohd. Kabiruddin Khan submitted an application at the office. Complainant visited the office multiple times and the Inspector was not available. On the third visit, the appellant allegedly demanded Rs.500/- and so the complainant approached the DSP who after verifying the complaint registered an FIR. Complainant went with PW 5 who was a mediator. All the trap party members went to the office of MRO and caught the appellant red-handed. Chemical tests were done which confirmed the traces of phenolphthalein which corroborated the handling of the tainted currency.

When the trial was conducted, an important witness, PW5 (the mediator) during his examination in chief did not recall the that two persons took out Ex.P3 file from a box. However, in the 'further examination in chief' he was allowed to peruse the post trap proceedings , and after going through the post-trap proceedings, he stated that it was the appellant who produced the Ex.P3 file. Further, along with Ex.P3, the appellant also produced pahani patrika-Ex.P10. The appellant claimed that the allowing the witness to refresh his memory in such a way violated the process of Section 137 and 138 of Evidence Act. The court proceeded to convict the appellant and sentenced.

The court stated that Special Judge had committed an error in permitting P.W.5 to go through the second mediators' report after he deposed that he does not remember who produced Exs.P3 and P10. P.W.5 was examined in chief on 27.04.2010. Thereafter, he was cross-examined on the same day by the appellant. The witness was again recalled on 30.08.2010, and 'further chief-examination' was taken up. The bench further stated that “A witness can refresh his memory by going through the earlier panchanama or proceedings drafted, which is admissible under Section 159 of the Indian Evidence Act. However, such reference cannot be to the prejudice of an accused.”

Case Title: L.Venkateshwara Rao vs. The State of AP, through Inspector of Police, Hyderabad Range

Case No: Criminal Appeal No.1567 OF 2010

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