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Central Bureau Of Investigation v. Tuncay Alankus .
Factual and Procedural Background
The respondent was charged with offences under Section 120-B read with Sections 409, 420 of the Indian Penal Code and Sections 7, 11, 13(1)(c), 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988. After the prosecution evidence closed and the respondent was examined under Section 313 CrPC, he supplied a list of 63 defence witnesses. By order dated 11-10-2004 the Special Judge permitted examination of only six of those witnesses, some through video-conferencing, and required the defence to secure their willingness and convenient dates.
The respondent’s application for review of that order was dismissed. A writ petition under Articles 226/227 of the Constitution was also dismissed on 31-1-2005 with an observation that the proper remedy lay under Sections 397 or 482 CrPC. The respondent then filed Criminal Revision No. 126 of 2005. On 14-7-2005 a learned Single Judge of the Delhi High Court, without analysing the Special Judge’s reasoning, allowed the revision in part and authorised examination of 21 additional defence witnesses.
The Central Bureau of Investigation appealed to the Supreme Court, resulting in the present judgment and order.
Legal Issues Presented
- Whether, in exercise of revisional jurisdiction under Sections 397/401 CrPC, the High Court was justified in overturning the Special Judge’s reasoned order and permitting examination of 21 additional defence witnesses without itself assigning reasons.
- Whether the discretion conferred on a trial court by Section 243(2) CrPC to refuse summoning of defence witnesses was properly respected by the High Court.
Arguments of the Parties
Appellants’ Arguments
- The High Court should not have interfered lightly with the Special Judge’s discretionary decision taken under Section 243(2) and Section 312 CrPC.
- The interim injunction dated 4-9-2006 restraining the respondent from withdrawing money from Swiss bank accounts should be made absolute.
Respondent’s Arguments
- The defence is entitled to full opportunity to present its case and examine its witnesses; the delay in trial is attributable to the prosecution, not the accused.
- The respondent spent approximately 7½ years in custody before being granted bail, underscoring the need to allow defence evidence.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Tuncay Alankus v. C.B.I., (2005) 121 DLT 590; (2005) 83 DRJ 407 | High Court’s earlier order allowing examination of additional defence witnesses | The Supreme Court scrutinised and ultimately set aside this order for lack of reasoning. |
Court's Reasoning and Analysis
The Supreme Court observed that Section 243(2) CrPC gives the trial court discretion to refuse summoning of defence witnesses if the request is for vexation, delay or to defeat justice, and such refusal must be recorded with reasons. The Special Judge had complied with this requirement by analysing at length why only six of 63 witnesses were necessary.
The High Court, exercising revisional jurisdiction under Sections 397/401 CrPC, was bound to evaluate the Special Judge’s reasoning and explain why it disagreed. Instead, it merely stated that “full and complete opportunity” should be given to the defence, without addressing the Special Judge’s detailed findings. The Supreme Court held that this omission rendered the High Court’s order unsustainable.
The Court further noted that the proposed defence witnesses were located in ten different countries and in India, implicating logistical and cost considerations. It emphasised that witnesses are not to be summoned solely because the defence desires it; their testimony must aid the defence case, a point ignored by the High Court.
Holding and Implications
APPEALS ALLOWED. The Supreme Court set aside the High Court’s order dated 14-7-2005 and restored the Special Judge’s order permitting examination of only the six witnesses identified on 11-10-2004. The interim injunction of 4-9-2006 restraining the respondent from withdrawing funds from Swiss bank accounts was made absolute until final decision.
Implications: The matter is remitted to the High Court to dispose of the respondent’s revision expeditiously—preferably within two months—while issuing appropriate directions regarding video-conferencing and costs of witness examination. The decision reinforces the requirement that revisional courts must provide reasoned judgments when interfering with discretionary orders of trial courts and underscores judicious use of Section 243(2) CrPC to prevent unnecessary delays.
Order
1. These appeals are directed against the judgment and order dated 14-7-2005 passed by the learned Single Judge of the High Court of Delhi at New Delhi in Tuncay Alankus v. CBI (2005) 121 DLT 590, (2005) 83 DRJ 407 whereby and whereunder the respondent's revisional application from an order of the learned Special Judge dated 11-10-2004 in regard to examination of defence witnesses had been allowed in part.
2. The respondent herein was charged for commission of offences punishable under Section 120-B read with Sections 409, 420 IPC and Section 13(2) read with Sections 7, 11 and 13(1)(c) and (d) of the Prevention of Corruption Act, 1988; and Sections 409, 420 IPC, Sections 7, 11 and 13(1)(c) and (d) of the Prevention of Corruption Act, 1988. Examination of the prosecution witnesses before the Special Judge, admittedly, is over. The respondent has also been examined under Section 313 CrPC. He produced a list of 63 defence witnesses. The learned Special Judge examined at some length as to whether the deposition of the said witnesses would be necessary and by reason of an order dated 11-10-2004 opined that six out of 63 witnesses cited on behalf of the defence should be allowed to be examined. Some of these witnesses were directed to be examined through videoconferencing. It was, furthermore, directed that the defence shall obtain willingness from the witnesses and also the dates which would be convenient to them for their examination on videoconferencing.
3. Aggrieved thereby and dissatisfied therewith the respondent filed an application for review of the said order. It was dismissed. An application under Article 277 of the Constitution of India was, thereafter, filed and by reason of a judgment and order dated 31-1-2005, it was opined that exercise of jurisdiction under Articles 226 and 277 of the Constitution of India would be inappropriate. It was observed that the remedy of the respondents, if any, for ventilating their grievances in relation to such order would be an appropriate application under Section 397 or 482 CrPC. Some other observations were also made in relation to other parts of the order impugned before it. Pursuant to or in furtherance of the said observations, the respondent filed a revisional application before the High Court being No. 126 of 2005.
4. We may at this stage notice that in the writ proceedings the number of witnesses were brought down to 21 from 63 apart from those witnesses whose examination was allowed by the trial court. The Revisional Court without entering into the merit of the matter and without dealing with the reasonings of the trial Judge has allowed the application stating: (Tuncay Alankus case (2005) 121 DLT 590, (2005) 83 DRJ 407, DLT pp. 591-92, para 7)
“7. Heard the counsel for the parties and have perused the order under challenge. It appears to me that in the matter which has such wide ramifications, as also a large number of witnesses have been examined from the side of the prosecution, full and complete opportunity ought to be given to the defence to lead its evidence.
What each witness of the defence seeks to depose has been stated in the application which according to me justifies their examination. It is, therefore, fair to permit the defence to examine the 21 witnesses, list whereof has been placed on record, in addition to the witnesses allowed by the trial court.”
5. Submission made on behalf of the appellants before us is that having regard to the provisions of sub-section (2) of Section 243 CrPC as also Section 312 thereof, the Revisional Court ought not to have lightly interfered with the discretionary jurisdiction exercised by the learned trial Judge.
6. Mr Bhaskar P. Gupta, learned Senior Counsel appearing on behalf of the appellant in Criminal Appeal No. 926 of 2006 submitted that the order of injunction passed against the respondent by this Court in its order dated 4-9-2006 SLP (Cri) No. 6291 of 2005 should be made absolute.
7. Mr Harjinder Singh, learned Senior Counsel appearing for the respondent, on the other hand, would submit that the defence was entitled to examine its witnesses. It was contended that the delay in disposal of the matter was not on account of the accused but on account of the prosecution. It was pointed out that the respondent was in custody for a period of 7½ years before he was released on bail.
8. We do not propose to enter into rival contentions of the parties. We may, however, observe that when the trial Judge assigned reasons in support of his judgment, we are of the opinion that the High Court while exercising its revisional jurisdiction was required to assign reasons as to how and to what extent, if any, it intended to differ with the order of the learned trial Judge. Sub-section (2) of Section 243 confers discretionary jurisdiction upon the learned trial Judge to refuse to summon witnesses at the instance of the defence, inter alia, on the ground that it was made for the purpose of vexation or delay or for defeating the ends of justice. Such an order under sub-section (2) of Section 243 CrPC is required to be recorded by the learned Judge in writing. It was so done. The learned Special Judge, as noticed hereinbefore, considered the matter at some depth. The High Court, therefore, while exercising its revisional jurisdiction under Section 397 read with Section 401 CrPC was required to assign reasons in support of its conclusions as to how the reasons assigned by the learned trial Judge were untenable and/or were otherwise insufficient.
9. A large number of witnesses are sought to be examined by the defence. They are from as many as ten different countries. Some witnesses are also from India. If the summons are sought to be obtained to examine the said witnesses, ordinarily, the defence is required to satisfy the Court as to how examination of the said witnesses would be in aid of its defence. The witnesses need not be summoned only because the defence wishes the Court to do so. As the learned Single Judge of the High Court, in our opinion, has not adverted to this aspect of the matter, the impugned judgment cannot be sustained.
10. We have not gone into the question as to efficacy or otherwise of examination of the said witnesses on videoconferencing as to who would bear the requisite expenses therefor, as necessary direction is to be issued by the High Court in this behalf also. The contentions of the parties in all respects shall remain open. However, we would request the learned trial Judge to examine those witnesses who are covered in terms of its order dated 11-10-2004.
11. Mr Harjinder Singh, learned counsel states that the respondent shall also make all endeavour to bring the defence witnesses for their examination before the Court, if it is possible. No exception thereto can be taken.
12. Keeping in view the fact that the trial is pending since 1995, we would request the High Court to consider the desirability of hearing out the matter as expeditiously as possible and preferably within a period of two months from the date of communication of this order. We would appreciate if the High Court issues requisite directions while disposing of the revisional petition in this behalf also to the trial court.
13. The interim order dated 4-9-2006 SLP (Cri) No. 6291 of 2005 is made absolute to the effect that the respondent is restrained from withdrawing the amount from the accounts in Swiss Bank till the decision of the matter. The appeals are allowed accordingly.
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