Govt Servant Turning Hostile In Criminal Trial Does Not Amount To Misconduct, May Be Unethical: Bombay High Court

The Aurangabad bench of Bombay High Court recently held that a government servant turning hostile in a criminal trial may be unethical, but it does not amount to misconduct capable of being punished.

"Not standing by the statement given under Section 164 of Cr.P.C. during his testimony during trial could possibly be construed as an unethical act not expected of an ideal government servant .... The same, however, would not amount to misconduct capable of being subjected to punishment for ensuring discipline amongst the organization," said the court.

However the court clarified that "every such act would not go unpunished even departmentally, for that upon being convicted for the offence of perjury, the appointing authority has a right to punish him/her based on conviction without conducting any departmental inquiry. Therefore the act of turning hostile ipso facto would not amount to misconduct."

A division bench of Justices Mangesh S. Patil and Sandeep V. Marne further observed that the disciplinary authority is not an expert to gauge the factors leading to hostility of the witness and perjury can only be established by the Sessions Court and not in a disciplinary inquiry.

"Whether he had committed offence of perjury or not can be established by the Sessions Judge alone. The same cannot be established in a disciplinary enquiry.… The appointing authority, not being an expert, would otherwise not be in a position to gauge the factors leading to hostility of the witness", the court observed.

The court was dealing with a writ petition that challenged penalisation of the petitioner for turning hostile during a trial in the session court. The petitioner is a peon working at the Collector Office, Nanded.

He turned hostile while testifying in a trial against another peon in the Sessions Court. The accused was acquitted.

The authorities initiated disciplinary proceedings against him and charged him with misconduct for turning hostile. The disciplinary authority found him guilty and imposed a penalty. The appellate authority upheld the penalty, and the revisional authority also rejected his revision petition.

The final penalty imposed on him was reduction in minimum pay scale on a permanent basis. The Maharashtra Administrative Tribunal (MAT) upheld this penalty. Hence, the petitioner approached the High Court,

Advocate Sunil V. Kurundkar for the petitioner submitted that mere giving of testimony before the Sessions Judge cannot amount to misconduct. Further, the petitioner's testimony alone did not result in acquittal of the accused.

Assistant Government Pleader K. N. Lokhande submitted that the petitioner had witnessed the accused pushing the victim from the terrace. His statement was recorded by Special Judicial Magistrate under Section 164 of the Cr.P.C. The accused was acquitted only because the petitioner turned hostile. Therefore, turning hostile amounts to misconduct, it was argued.

The court noted that perjury is an offence punishable under Section 191 of the Indian Penal Code and the law provides for a complete mechanism to punish a person committing office of perjury.

"Turning hostile, by itself, is not an offence. The only Court competent to record a finding of commission of perjury was the Sessions Judge," it said.

The court further noted that after considering the testimony of the petitioner, the Sessions Judge has decided not to try the petitioner for perjury under Section 191 of the IPC. Therefore, it is difficult to hold the act of giving testimony before Sessions Judge as misconduct and to punish the petitioner for the same, it added.

"One may morally expect a witness to stand by his previous statement during trial. For a government servant, a higher degree of responsibility could be expected by assisting the prosecution to bring home guilt of the accused by sticking to the statement previously recorded", said the court.

However, the question is whether this expectation can be extended so that the act of turning hostile becomes a misconduct that should be punished, the court stated. It answered the question in negative and said, "We therefore find that initiation of disciplinary proceedings against the petitioner was completely unwarranted."

The court also perused the judgement of the Sessions Court in which the Judge had stated that the petitioner's statement under Section 164 of the Cr.P.C. was not recorded as per proper procedure and the evidence against the accused was not sufficient for conviction.

Thus, the court concluded that the accused was not acquitted due to hostility of the petitioner alone. "Furthermore it is trite that testimony of a hostile witness is not to be ignored in its entirety. Therefore the acquittal of the accused cannot be attributed to the Petitioner's testimony alone," it added.

The court set aside the decisions of MAT, Aurangabad as well as the decisions of the disciplinary authority, appellate authority, and the revisional authority.

The court directed that all benefits arising on account of the setting aside of these orders of penalty must be paid to the petitioner within four months.

"It is on both counts, impermissibility to initiate disciplinary proceedings in absence of petitioner's trial U/Sec. 191 of the I. P. Code as well as the findings recorded by the Sessions Judge in the judgment acquitting the accused, we are of the view that penalty imposed upon the petitioner is unwarranted," said the court.

Case no. – Writ Petition No. 2352 of 2018

Click Here To Read/Download Judgment