Full Judgment Text
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IN THE HIGH COURT OF DELHI AT NEW DELHI
th
Decided on: 28 February, 2019
+ CRL.M.C. 3838/2016 and Crl. M.A. 16071/2016
AIR MARSHAL HARISH MASAND ..... Petitioner
Through: Mr. Samrat Nigam, Mr.
Abhimanyu Walia and Mr. Shaurya
Kathiala, Advocates
versus
M/S OUTLOOK PUBLISHING (INDIA)
PVT LTD & ORS ..... Respondents
Through: Mr. Siddharth Yadav, Advocate
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
ORDER (ORAL)
1. The petitioner is the complainant in criminal complaint case
(CC No.1168/1/2005) which is pending in the court of the Chief
Metropolitan Magistrate (CMM) of South District at Saket, the first to
third respondents (collectively referred to hereinafter as “the accused”)
having been summoned as accused therein by order dated 23.01.2006,
on the basis of preliminary inquiry, on the accusations of offences
punishable under Sections 500, 501 and 502 of Indian Penal code,
1860 (IPC).
Crl.MC 3838/2016 Page 1 of 14
2. The trial in the aforesaid case had reached the stage of defence
evidence when, at the instance of the accused, the fourth respondent
herein appeared as witness in defence (DW-1), his chief-examination
having been recorded on 14.12.2007, his cross-examination having
continued over certain subsequent dates, it being concluded on
22.12.2007.
3. On 24.12.2007, the petitioner (complainant) moved two
applications, one invoking the provision contained in Section 311 of
the Code of Criminal Procedure (Cr.PC) and the other under Section
319 Cr. PC. Both the said applications were decided by the trial court
by a common order passed on 26.02.2008. While the second
application (under Section 319 Cr. PC) was allowed, it resulting in the
fourth respondent (DW-1) being impleaded as an additional accused,
the other application of the complainant under Section 311 Cr. PC was
dismissed on the ground that the said witness (DW-1), who stood
summoned as additional accused, could not be compelled to answer
the questions, refusal to do so being the root cause for the request
made therein.
4. The petitioner challenged the dismissal of his application under
Section 311 Cr. PC, the fourth respondent (DW-1) challenging the
order summoning him as additional accused, by separate petitions -
Crl. MC 840/2008 and Crl. M.C. 1584/2008 in this court. Both the
said petitions were decided by a common judgment passed on
29.06.2015. The learned single judge deciding the said matters was of
the view that the Metropolitan Magistrate had fallen in error by
Crl.MC 3838/2016 Page 2 of 14
considering the two applications together, the proper course
commended to be for decision first to be taken on the prayer under
Section 311 Cr. PC. The matter arising out of the said applications
was remanded to the trial court for fresh decision.
5. After the remit, the complainant moved another application
under Section 311 Cr. PC on 09.10.2015. His two applications under
Section 311 Cr. PC, the one moved on 24.12.2007 followed by the one
moved on 09.10.2015, were considered together by the CMM, and
dismissed by order dated 06.09.2016.
6. Feeling aggrieved by the said order dated 06.09.2016, the
complainant has come with the present petition invoking the inherent
power and jurisdiction of this court under Section 482 Cr. PC read
with Article 227 of the Constitution of India, his contention being that
the trial court has failed to bear in mind and apply the statutory
provisions contained in Sections 132 and 165 of the Indian Evidence
Act, 1872 (Evidence Ac) read with Section 311 Cr. PC, its approach to
the issues arising out of the requests in the said two applications being
mis-directed.
7. Per contra , the first to third respondents (accused) through their
joint reply, the fourth respondent (DW-1), having adopted the said
reply, have resisted the prayer in the petition, the prime contention
raised being that the provision contained in Section 311 Cr. PC cannot
be used by a party to a litigation, it being a jurisdiction conferred on
the criminal court which cannot be “ compelled ” to exercise it against
its judicial discretion. It is argued that the prayer for recall of DW-1
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for further cross-examination or for he to be compelled to answer the
questions is unjust and unfair, since it exposes him to possibility of
self-incrimination, also requiring him to breach the confidentiality of
the source of his information as a journalist and consequently being
violative of Article 19(1)(a) and Article 20(3) of the Constitution of
India.
8. The background facts of the criminal complaint in which the
present controversy arises were succinctly noted in the judgment dated
29.06.2015 in Crl. M.C Nos.840/2008 and 1584/2008, the relevant
portion whereof may be extracted as under :-
“6. The case of the petitioner is that the
petitioner is a retired Air Marshal of the Indian Air
Force. In January 2004, the petitioner was serving in
the rank of Air Vice Marshal in the Indian Air Force
when he was denied promotion to the rank of Air
Marshal. Being aggrieved by this denial of
st
promotion, on 21 January, 2004, the petitioner filed
a Writ Petition (Civil) No.1035/2004, titled as „Air
Vice Marshal Harish Masand Vs. Union of India &
Ors.‟. before this Court challenging the decision of
the Indian Air Force and the Union of India and this
Court allowed the Writ Petition by final judgment
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dated 8 November, 2004. Thereafter, Union of India
filed Special Leave Petitions (Civil) No.24880/2004
and 24886/2004 in the Supreme Court challenging
the judgment of this Court and the matter was listed
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before the Supreme Court on 7 December, 2004 and
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for admission on 13 December, 2004.
6.1 In the meanwhile, OUTLOOK Weekly News
Magazine published on “exclusive”, “only in
Outlook” article entitled “Air of Uncertainty”,
claiming to arise out of the orders of this Court, with
Crl.MC 3838/2016 Page 4 of 14
number of defamatory allegations against the
petitioner, as well as Air Vise Marshal Chhatwal, in
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the 13 December, 2004 issue of the magazine which
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hit the new stands in the country on 5 December,
2004, i.e. just before the date already fixed of mention
of the SLPs in the Supreme Court.
6.2 The above article, which claims that the
orders of this Court had racked (sic) up “an old
issue: how personal should the professional get” and
tossed up the question “where to draw the line
between the bedroom and the war room” etc. along
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with the above quoted orders dated 8 November,
2004 of this court, would immediately show that the
article completely distorts the issues raised and
adjudicated upon in the promotion cases by this
Court while making totally false and defamatory
allegations of fact and imputations against the
petitioner as alleged by him. It is the case of the
petitioner that none of these allegations and
imputations were pleaded or argued in before the
Court in the promotion cases because these were
totally false and could not be sustained by any official
record.
7. Aggrieved by the alleged act of the respondents
No.2 to 5, the petitioner sent them a legal notice by
th
registered post on 13 December, 2004 stating that
these allegations and imputations were totally false
and defamatory, and these had been printed without
even contacting and ascertaining the true fats from
the petitioner and demanding that the sources of
information and material for the article be disclosed.
8. There was no response from the respondents to the
above notice and to further aggravate the issue, the
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respondents published yet another article in the 7
March, 2005 issue of the said magazine entitled
“Taking Off : On a Wing and a Plea” wherein the
previous article “Air of Uncertainty” was again
Crl.MC 3838/2016 Page 5 of 14
referred, with the caption “The Masand Story :
Blowing the lid Off”.
9. In view of publication, the petitioner filed a
Criminal Complaint under Section 500, 501 and 502
th
IPC on 12 July, 2005, Complaint Case
No.1168/1/2005 in the court of the Additional Chief
Metropolitan Magistrate, Patiala House Courts, New
Delhi against the respondent Nos.2 to 5.
rd
10. The trial court on 23 January, 2006 prima
facie found that an offence is disclosed under Section
500, 501 and 502 IPC against all the respondents /
accused and issued summons.”
9. The copy of the impugned publication on which the
aforementioned criminal case is founded has been placed before the
court, it having been referred to in the complaint case as Ex. CW1/2.
A bare perusal of the contents of the article, the publication showing
the third respondent to be its author, reveals that it prima facie
contains insinuations which had the effect of lowering the reputation
of the complainant in the estimation of people at large. There is no
dispute at this stage about the conclusion to this effect in as much as
the trial is underway on such accusations. The impugned publication
also reveals that the fourth respondent (DW-1) was the senior editor of
the magazine in question, particularly for the issue dated 13.12.2004
in which the said article was published. It is also clear that the
accused persons (i.e. first to third respondents) had chosen, of their
own volition, to bring in the fourth respondent as a defence witness, he
having made the statement in that capacity voluntarily, his deposition
having commenced on 14.12.2007. It is noted that during his
examination-in-chief, the fourth respondent testified that the contents
Crl.MC 3838/2016 Page 6 of 14
of the articles pertain to a matter which was within his “ personal
knowledge ”, such personal knowledge extending to the fact that there
was a reference to certain aerobatics having been performed to
impress a particular lady. The fourth respondent also volunteered in
his chief-examination that he had “ met some of the Air Force officers ”
and also “ had a close look at the notes taken down about the court of
inquiry ” as had been shown to the author of the article (third
respondent), the reference about a “ girl friend ” made in the impugned
publication also having “ come from the Air Force officers ”, the third
respondent (author of the article) having “ confirmed from the Air
Force officers that the lady in question was the reason behind Air
Marshal Masand being denied promotion ”.
10. From the drift of the chief-examination of DW-1 during
evidence tendered by the accused at the trial, it is clear that the
defence raised is as to the bonafide of the publication, as indeed,
possibly of the truth of the matter. The complainant, by cross-
examination, sought information, inter alia , to ascertain the identity of
the source of above information. DW-1 though reiterating at that
stage that he had met the concerned senior Air Force officers in the
presence of the author of the article, even after the draft of the “ story ”
had been submitted, and having witnessed such exchange, declined to
disclose the identity of the concerned individuals. The refusal to
answer the questions in this regard was reiterated on the subsequent
date when the cross-examination had continued.
Crl.MC 3838/2016 Page 7 of 14
11. The application dated 24.12.2007 under Section 311 Cr. PC
made the following prayer :-
“(a). Direct the accused to reveal their sources of
information and summon these as witnesses.
(b). In the alternative, summon the three members
of the relevant Promotion Board, named above, as
witnesses U/s. 311 of Cr. PC…”
12. It may be mentioned here that in the above-said application, the
complainant had mentioned (in para 18) names of certain senior
officers as the three members of the promotion board in whose respect
the prayer clause (b) had been included, his grievance, as pressed at
that stage, essentially concerning the disinclination of DW-1 to
disclose the identity of the persons from whom the facts were being
projected as duly verified before the article was cleared for
publication. By the application dated 09.10.2015, moved after the
remit, however, the complainant also invoked Section 132 of the
Evidence Act, it being pressed conjointly with the earlier application
dated 24.12.2007 so as to compel DW-1 to respond to the remaining
unanswered questions.
13. Section 132 of the Evidence Act reads as under :-
“132. Witness not excused from answering on ground
that answer will criminate.—A witness shall not be
excused from answering any question as to any matter
relevant to the matter in issue in any suit or in any civil
or criminal proceeding, upon the ground that the
answer to such question will criminate, or may tend
directly or indirectly to criminate, such witness, or that
Crl.MC 3838/2016 Page 8 of 14
it will expose, or tend directly or indirectly to expose,
such witness to a penalty or forfeiture of any kind:
Proviso — Provided that no such answer, which a
witness shall be compelled to give, shall subject him to
any arrest or prosecution, or be proved against him in
any criminal proceeding, except a prosecution for
giving false evidence by such answer.
14. This court agrees with the respondents that the first prayer
[clause (a)] in the application dated 24.12.2007 for the accused to be
directed to reveal their source of information or for them to be
summoned as witnesses cannot be allowed. An accused cannot be
compelled to incriminate himself – Article 20(3) of the Constitution of
India affords him protection in this regard. The accused cannot also
be compelled to appear as a witness. It is his choice whether to do so
or not. Section 315 Cr. PC only declares that an accused is also a
competent witness; he not being permitted to appear in such capacity
unless he makes a “ request in writing ” to the court. The second prayer
[clause (b)] in the application dated 24.12.2007 for the three members
of the promotion board to be summoned as witnesses also did not
deserve to be allowed. The complainant’s evidence was over. He had
not chosen to examine them as his own witnesses. This court, thus,
would not interfere with the discretion exercised by the trial court in
refusing to summon the said three persons as witnesses under Section
311 Cr. PC. But, the prayer in the application dated 09.10.2015 to
above effect could not have been short shrifted in the manner done.
15. A judge presiding over the trial is conferred by Section 165 of
the Evidence Act, with the power to put questions or to order
Crl.MC 3838/2016 Page 9 of 14
production of additional evidence if it is so required “ to discover or to
obtain proper proof of relevant facts ”. The provision reads thus :-
“165. Judge‟s power to put questions or order
production.—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:
Provided that the Judgment must be based upon facts
declared by this Act to be relevant, and duly proved:
Provided also that this section shall not authorize any
Judge to compel any witness to answer any question,
or to produce any document which such witness would
be entitled to refuse to answer or produce under
sections 121 to 131, both inclusive, if the questions
were asked or the documents were called for by the
adverse party; nor shall the Judge ask any question
which it would be improper for any other person to ask
under section 148 or 149; nor shall he dispense with
primary evidence of any document, except in the cases
hereinbefore excepted.”
16. It is clear that the two provisos appended to Section 165 of
Evidence Act circumscribe the jurisdiction and authority of the judge
presiding over the trial to invoke his power to put questions to a
witness, such power apparently not being available to render a
decision on facts which are not relevant, or on facts which are not duly
proved, and it also not authorizing the judge to compel any witness to
Crl.MC 3838/2016 Page 10 of 14
answer any question, or to produce, any document which such witness
is entitled to refuse to answer, or produce, under the specified
statutory clauses. Noticeably, Section 132 of the Evidence Act, as
quoted above, stands out from the said exclusion. Noticeably again,
by virtue of Section 132 Evidence Act, a witness is not entitled to
refuse to answer any question only because it might be self-
incriminating (directly or indirectly) or that it might expose him
(directly or indirectly) to a punitive action, he by virtue of the proviso
appended to Section 132 Evidence Act being immune from arrest or
prosecution on account of the answer which he has been compelled to
give, unless the answers given are found to be false leading to a charge
of perjury.
17. The respondents have relied on Mohan Lal Shamji Soni vs.
Union of India and Anr. 1991 Supp (1) SCC 271 and Zahira
Habibulla H. Sheikh and Anr. Vs. State of Gujarat and Ors. (2004) 4
SCC 158 , to argue that the power under Section 311 Cr. PC being
discretionary, the court being expected to be neutral, the decision of
the trial court not to exercise such jurisdiction to compel recall of DW-
1 for answering the questions which he had refused to answer earlier
should not be interfered with. This court finds the cases cited of no
help to the respondents. The object of the criminal trial is to reach out
to the truth. DW-1 was produced by the accused persons on their own
volition. Given the background facts mentioned earlier, the
complainant is within his legitimate rights to insist on clarity in as
much as the defence taken, and the credibility of the word of the DW-
1, have to be tested properly. The refusal to answer such questions
Crl.MC 3838/2016 Page 11 of 14
does give rise to the argument, and the possibility, that the facts
narrated by the witness may have been invented. It is rather in the
interest of the accused, as indeed of DW-1, that clarity as to the
inquiry made to confirm the authenticity of the facts published be
confirmed by disclosing the names of the individuals from whom such
facts had been gathered or verified.
18. Noticeably, while refusing to answer, DW-1 had not given any
reason. Undoubtedly, he has certain rights under the law which
include the fundamental right under Article 20(3) of the Constitution
of India. But then, at the time of his deposition (as DW-1), he was
appearing in the criminal court – not as a person accused of an offence
but – as a witness whose rights and obligations are spelt out clearly in
Section 132 of the Evidence Act quoted above. The application under
Section 319 Cr. PC has not been decided. Mere pendency of such
prayer does not mean the fourth respondent acquires certain superior
rights over and above Section 132 of the Evidence Act. As regards
the freedom of speech and expression, as enshrined in Article 19(1)(a)
of Constitution of India, all that needs to be said at this stage is that
such freedom comes with the exceptions also prescribed by the
suprema lex .
19. The power given to the judge presiding over a criminal trial by
Section 165 of the Evidence Act is expected to be used to bring
clarity, particularly when a smoke-screen is attempted to be created in
as much as such smoke-screen hinders the search for the truth. This
court agrees with the submissions of the complainant that given the
Crl.MC 3838/2016 Page 12 of 14
refusal on the part of the witness (DW-1) to answer the above
mentioned queries in the cross-examination, it was the duty of the
presiding judge to exercise his jurisdiction and power under Section
132 read with Section 165 Evidence Act to insist on answers to be
given in as much as refusal to answer is also a penal offence (see
Section 179 IPC).
20. As mentioned above, the fourth respondent (DW-1) has not
indicated till date as to how the information sought from him by
questioning in the above nature is privileged. It is not his choice to
answer or refuse to answer. Once he has voluntarily entered the
witness box, he is bound to answer unless he makes out a proper case
justifying his refusal to answer under the law. That exercise was
never done before the trial court. The trial judge seems to have
abdicated his responsibility in terms of Section 132 and Section 165 of
the Evidence Act.
21. In the considered view of this court, the impugned order dated
06.09.2016 of the CMM declining the prayer for recall of DW-1 for
further cross-examination so as he to be compelled to answer the
questions which he had earlier refused to answer cannot be upheld.
The said order, thus, is set aside. The prayer to the said extent is
hereby allowed. The trial court is directed to recall the fourth
respondent (DW-1) and have him tendered for further cross-
examination by the complainant which exercise, however, shall be
restricted to reiteration of the questions about disclosure of the
information which the said witness had earlier refused to give
Crl.MC 3838/2016 Page 13 of 14
statement on and further questions, if any, ancillary thereto. While
presiding over such proceedings, the trial judge will be duty bound to
bear in mind his responsibility, inter alia , under Section 165 of the
Evidence Act and the obligation of the witness, inter alia , under
Section 132 of the Evidence Act. If the witness claims any privilege
against disclosure, he will be duty bound to state his reasons, on which
claim of privilege the presiding judge will be duty bound to render a
decision after hearing all concerned. It is trite that if the claim for
privilege against disclosure of information sought to be ascertained by
such cross-examination is found to be correct and proper under the
law, the presiding judge will pass necessary orders disallowing such
questioning. Conversely, if the claim of privilege is rejected, the
presiding judge will be duty bound to issue necessary directions
compelling the witness to answer and, in case of his persistence with
the refusal, to initiate all such action as is envisaged under the law.
Ordered accordingly.
22. For removal of doubts, however, it is clarified that nothing in
this order shall be construed as reflective of opinion on the claim of
privilege of the fourth respondent against disclosures.
23. The petition and the application filed therewith are disposed of
in above terms.
R.K.GAUBA, J.
FEBRUARY 28, 2019
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