Bombay High Court
Shri. Bajrangsing S/O. Sardarsingh ... vs The State Of Maharashtra Thr. Police ... on 4 May, 2017
Author: P.N. Deshmukh
Bench: P.N. Deshmukh
1 apl235.17
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPLICATION (APL) NO.235 OF 2017
1) Bajrangsingh s/o Sardarsingh Rajput,
aged about 52 years, occupation :
Labourer, r/o Anikat Zopadpatti,
Akola.
2) Ranjeetsingh Gulabsingh Chungade,
aged about 67 years, occupation :
Business, Rajputpura, Akola. ... Applicants
- Versus -
The State of Maharashtra, through its
Police Station Officer, Police Station,
Ramdaspeth, Akola. ... Respondent
-----------------
Shri Anil Mardikar, Senior Advocate with Shri S.G. Joshi, Advocate for
applicants.
Shri T.A. Mirza, Additional Public Prosecutor for respondent.
----------------
Date of reserving the judgment : 26/04/2017
Date of pronouncing the judgment : 04/05/2017
CORAM : P.N. DESHMUKH, J.
DATED : MAY 4, 2017
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JUDGMENT :
Admit. Heard finally with consent of Shri Mardikar, learned Senior Counsel for applicants, and Shri Mirza, learned Additional Public Prosecutor for respondent.
2) This criminal application is filed by applicants (hereinafter referred to as "accused") for quashing of the common order dated 29/3/2017 passed by learned Additional Sessions Judge, Akola in Sessions Trial No.234/2002 below Exh. 287, which application is filed by accused for de-exhibiting the documents, Exh.290, which application is filed by accused for summoning Sanctioning Authority, who had accorded sanction to prosecute accused under Arms Act and Exh 291, which is filed by accused for summoning Chemical Analyser/Ballistic Expert, which came to be rejected.
3) Before going to the facts of this application as revealed from the affidavit-in-reply filed by respondent, it is noted that as per order dated 20/11/2015 passed by this Court, prosecution was allowed to lead secondary evidence by observing that such evidence was required to be led as the record was destroyed and as such, its reconstruction was allowed. The said order appears to have been passed by this Court in view of the fact that after filing of charge-sheet, original record was torn ::: Uploaded on - 06/05/2017 ::: Downloaded on - 07/05/2017 00:50:35 ::: 3 apl235.17 and damaged and thus, reconstruction of such record was allowed and trial has commenced. It is further material to note that trial is of the year 2002 in respect of the offence, which took place in 1993. It is thus noted that trial is being prolonged for last 23 years. It is not in dispute that prosecution has accordingly reconstructed the record and provided copies thereof to accused and learned trial Court during the course of recording evidence has exhibited certain documents, which are marked as Exhs. 273 to 284 by recording objections of accused to be decided finally at the stage of arguments. It is, therefore, contended on behalf of accused that documents, which are exhibited, in fact could not be admitted and read in evidence as secondary evidence and as such, same be de-exhibited. However, under the impugned order, request of accused is not allowed.
4) At this juncture it is material to note that admittedly, request of accused to de-exhibit documents, which are exhibited as aforesaid, appears to have been rejected by the impugned order observing that as admittedly there is no original record available since torn and only partly torn documents are available on record, no copies can be prepared from the torn record and had it been possible, then there would be no necessity to direct re-construction of record from the documents, which are available with prosecution and accused. Hence, question of reconstruction of record after comparing documents with original record, which itself is torn, does not arise. In the light of these facts, learned Additional ::: Uploaded on - 06/05/2017 ::: Downloaded on - 07/05/2017 00:50:35 ::: 4 apl235.17 Sessions Judge has rejected application (Exh. 287) filed by accused for de-exhibiting the documents.
5) From the above facts, it is, therefore, clear that Exhs.273 to 284, which are stated by learned Senior Counsel for accused to be in the form of correspondence by way of requisition letter to Chemical Analyser, duty pass issued to Police Constable for carrying muddemal, letter to Chemical Analyser and its envelope, Chemical Analyser's reports, correspondence made by Investigating Officer with local Crime Branch and Sanctioning Authority, who granted sanction for prosecution of accused under Arms Act, correspondence with Superintendent of Police for filing charge-sheet, permission to file charge-sheet, etc. are the documents, which came to be exhibited.
6) Shri Mardikar, learned Senior Counsel for accused, in the set of circumstances, has referred to decision of Full Bench of this Court in the case of Hemendra Rasiklal Ghia vs. Subodh Mody (2008 (6) Mh.L.J.
886) and decision of Hon'ble Apex Court in the case of Bipin Shantilal Panchal vs. State of Gujarat and another (AIR 2001 SC 1158).
7) Shri Mirza, learned Additional Public Prosecutor for respondent, has opposed the application in the light of affidavit-in-reply on record and law laid down by Hon'ble Apex Court in the case of State ::: Uploaded on - 06/05/2017 ::: Downloaded on - 07/05/2017 00:50:35 ::: 5 apl235.17 through Special Cell, New Delhi vs. Navjot Sandhu alias Afshan Guru and others {(2003) 6 SCC 641)
8) The view taken by learned Single Judges in the case of Durgashankar vs. Babubhai (2003 (2) Mh.L.J. 576) and in the case of Bharat R. Desai vs. Naina M. Bhal (2004 (2) Mh.L.J. 901) was that while allowing parties to lead evidence in the form of affidavits, if same is objected to, the admissibility of documents must be decided by the Court before the documents are exhibited in evidence and that decision cannot be postponed to a later stage till final disposal of the case, while another view taken by learned Single Judge in the case of Boman P. Irani vs. Manilal P. Gala (2004 (2) Mh.L.J. 128) was that documents in question may be taken on record and marked as exhibits tentatively subject to the objections raised by defendants for decision, which should be considered at the time of final arguments and judgment. This view was based on the ratio laid down by the Hon'ble Apex Court in the case of Bipin Shantilal Panchal (supra) and in the case of State vs. Navjot Sandh (supra).
9) In view of above conflicting views of the learned Single Judges of this Court and considering the importance of question, reference was made to be decided by the Larger Bench by forming following question :
"Whether objections as to the admissibility or mode of proof of evidence, oral and documentary, should be decided upon when raised or whether decisions thereon can be deferred to a ::: Uploaded on - 06/05/2017 ::: Downloaded on - 07/05/2017 00:50:35 :::
6 apl235.17 later stage."
10) The Full Bench of this Court in paragraphs 48 and 49 of its judgment in the case of Hemendra Rasiklal Ghia (supra) has considered the law laid down by Hon'ble Apex Court in the case of Bipin Shantilal Panchal (supra) and State vs. Navjot Sandhu (supra) as well as relevant provisions of Order XIII and XVIII of the Code of Civil Procedure and classified admissibility of documents in evidence broadly into three categories as under :
(i) that objection to the document, which is sought to be proved is itself insufficiently stamped and the objection relates to deficiency of stamp duty of the document;
(ii) where the objection does not dispute admissibility of document in evidence, but is directed towards the mode of proof alleging the same to be irregular or insufficient; and
(iii) the objection that the document, which is sought to be proved is ab initio inadmissible in evidence.
In para 92 of the judgment, Full Bench has replied the answer as under :
"92. In view of the above analysis of the statutory provisions and our discussion, we, accordingly, articulate our conclusions as follows :
Answer to Question - A :
As already noticed, (i) objection to the document sought to be produced relating to the deficiency of stamp duty must be taken when the document is tendered in evidence and such ::: Uploaded on - 06/05/2017 ::: Downloaded on - 07/05/2017 00:50:35 :::
7 apl235.17 objection must be judicially determined before it is marked as exhibit;
(ii) Objection relating to the proof of document of which admissibility is not in dispute must be taken and judicially determined when it is marked as exhibit;
(iii) Objection to the document, which in itself is inadmissible in evidence can be admitted at any stage of the suit reserving decision on question until final judgment in the case. The Court trying the suit or proceedings as far as possible is expected to decide the admissibility or proof of document as indicated hereinabove. As we have already added a word caution that while exercising discretion judiciously for the advancement of the cause of justice for the reasons to be recorded, the Court can always work out its own modality depending upon the peculiar facts of each case without causing prejudice to the rights of the parties to meet the ends of justice and not to give the handle to either of the parties to protract litigation. The aim should always be to prevent miscarriage of justice and expedite trial, which is the dire need of the time.
Answer to Question - B :
The objection to the admissibility or relevancy of evidence contained in the affidavit of evidence filed under Order XVIII, Rule 4 of Civil Procedure Code can be admitted at any stage reserving its resolution until final judgment in the case as held in Ameer Trading Corpn. Ltd. vs. Shapoorji Data Processing Ltd. (supra)."
11) It is, however, material to note that law relied upon by ::: Uploaded on - 06/05/2017 ::: Downloaded on - 07/05/2017 00:50:35 :::
8 apl235.17 accused is pertaining to the provisions under the Code of Civil Procedure while in the case of Bipin Shantilal Panchal (supra) as well as State vs. Navjot Sandhu (supra), both the decisions are from criminal trial. In the case of Bipin Shantilal Panchal (supra), in paras 12, 13 and 14 of the judgment, Hon'ble Apex Court has observed thus :
"12. It is an archaic practice that during the evidence collecting stage, whenever any objection is raised regarding admissibility of any material in evidence, the Court does not proceed further without passing Order on such objection. But the fall out of the above practice is this : Suppose the trial Court, in a case, upholds a particular objection and excludes the material from being admitted in evidence and then proceeds with the trial and disposes of the case finally. If the appellate or revisional Court, when the same question is re-canvassed, could take a different view on the admissibility of that material, in such cases the appellate Court would be deprived of the benefit of that evidence, because that was not put on record by the trial Court. In such a situation, the higher Court may have to send the case back to the trial Court for recording that evidence and then to dispose of the case afresh. Why should the trial prolong like that unnecessarily on account of practices created by ourselves. Such practices, when realised through the course of long period to be hindrances which impede steady and swift progress of trial proceedings, must be recast or re-moulded to give way for better substitutes, which would help acceleration of trial proceedings.
13. When so recast, the practice which can be a better substitute is this : Whenever an objection is raised during evidence taking stage ::: Uploaded on - 06/05/2017 ::: Downloaded on - 07/05/2017 00:50:35 :::
9 apl235.17 regarding the admissibility of any material or item of oral evidence, the trial Court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the Court finds at the final stage that the objection so raised is sustainable, the Judge or Magistrate can keep such evidence excluded from consideration. In our view, there is no illegality in adopting such a course. However, we make it clear that if the objection relates to deficiency of stamp duty of a document, the Court has to decide the objection before proceeding further. For all other objections, the procedure suggested above can be followed.
14. The above procedure, if followed, will have two advantages. First is that the time in the trial Court, during evidence taking stage, would not be wasted on account of raising such objections and the Court can continue to examine the witnesses. The witnesses need not wait for long hours, if not days. Second is that the superior Court, when the same objection is re-canvassed and reconsidered in appeal or revision against the final judgment of the trial Court, can determine the correctness of the view taken by the trial Court regarding that objection, without bothering to remit the case to the trial Court again for fresh disposal. We may also point out that this measure would not cause any prejudice to the parties to the litigation and would not add to their misery or expenses."
12) Thus, the Hon'ble Apex Court in the case of Bipin Shantilal Panchal (supra) has laid down a procedure to be followed by the trial Court whenever an objection is raised regarding admissibility of any ::: Uploaded on - 06/05/2017 ::: Downloaded on - 07/05/2017 00:50:35 ::: 10 apl235.17 document by holding that on noting such objection, such document should be tentatively marked as exhibit and the objection should be decided at a final stage.
13) Similarly, in the case of State vs. Navjot Sandhu (supra), which also arises out of criminal trial, where objection was raised on behalf of accused regarding admissibility of intercepted communications as evidence, relying upon the law laid down in the case of Bipin Shantilal Panchal (supra), it is held by Hon'ble Apex Court that such objection should have been decided by the trial Court at the stage of final hearing.
14) From the impugned order, it is found that though objection was raised on behalf of accused for de-exhibiting documents as aforesaid, learned trial Court appears to have rejected the request without adhering to the procedure laid down by Hon'ble Apex Court as aforesaid and thus, having considered facts involved in the present application, so far as Exh. 287 for de-exhibiting the documents filed by accused is concerned and law as discussed hereinabove, it is just and proper to direct learned Sessions Judge to consider the documents, which are marked as Exhs. 273 to 284 at the time of final hearing by ignoring his observations as revealed from the impugned order passed below Exh. 287.
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15) Another application, order on which is impugned in this application, is Exh. 290 filed by accused for calling Sanctioning Authority, i.e. District Magistrate, who accorded sanction for prosecution of accused under Arms Act. Shri Mardikar, learned Senior Counsel for accused, has contended that in spite of raising objection, sanction accorded for prosecution is marked as Exh. 281 in the evidence of P.W.9 Dashrath Gawande, Investigating Officer. The grounds mentioned in the application (Exh. 290) for summoning the Sanctioning Authority are that the Investigating Officer in the cross-examination has admitted that he has not obtained sanction from the District Magistrate to launch prosecution while Officer, who had granted sanction to prosecution is no more alive. It is also admitted by the Investigating Officer that he is unable to say what documents were considered by the Sanctioning Authority while granting sanction and as such, it is contended that in the absence of evidence, sanction order came to be exhibited and as such, accused are deprived of their right to cross- examine the witness, which is prejudicial to their interest.
16) Learned trial Judge in para 17 of the impugned order rejected the request as aforesaid by noting that under Section 74 of the Indian Evidence Act, sanction order being public document, can be exhibited and read in evidence. It is, however, material to note that as ::: Uploaded on - 06/05/2017 ::: Downloaded on - 07/05/2017 00:50:35 ::: 12 apl235.17 per established law, Sanctioning Authority before according sanction has to apply his mind and depose as to what were the facts considered by him, on the basis of which he reached the conclusion that case for grant of sanction to prosecute accused is made out. However, in view of procedure adopted by learned Sessions Judge, it is noted that in the absence of evidence of Sanctioning Authority, there is every possibility of prejudice having been caused to accused as from the aforesaid evidence of Investigating Officer, prima faice it is noted that it is necessary to cross-examine Sanctioning Authority on the aspects raised in the application. The impugned order below Exh. 290 is, therefore, liable to be set aside. In the circumstances, on an application, if any moved by defence to summon the Sanctioning Authority, learned trial Court shall consider the same by giving an opportunity to accused to cross-examine the Sanctioning Authority.
17) Lastly, application (Exh. 291) appears to have been preferred by accused for calling Chemical Analyser/Ballistic Expert for cross-examination. Shri Mardikar, learned Senior Counsel for accused, has contended that prosecution has placed on record two Chemical Analyser's reports issued by Ballistic Expert, which admittedly were in a torn condition and as such, their copies could not be prepared and, therefore, prosecution has placed on record copies of Ballistic Expert's reports, which are marked as Exhs. 277 and 278 from the evidence of ::: Uploaded on - 06/05/2017 ::: Downloaded on - 07/05/2017 00:50:35 ::: 13 apl235.17 P.W.9 Gawande, Investigating Officer, though accused had raised objection for exhibiting the same. It is further submitted that accused, therefore, filed application to summon the Ballistic Expert. However, it was reported that one of the Deputy Directors is dead and address of another Deputy Director was given, who is now retired from his service. According to accused, examination of Ballistic Expert is necessary in view of evidence of Investigating Officer when he has admitted that he has not enquired with the Ballistic Expert as to what is the close range of country made pistol, which is allegedly seized in the present crime and Ballistic Expert can ascertain the same and as to when last firing was made from the alleged fire-arm, of which there are no reports on record. Thus, it is the case of accused that for fair trial, they want to cross- examine the Ballistic Expert on aforesaid aspects and also on other grounds as put forth in the application (Exh. 291). However, learned trial Court under the provisions of Section 293 of Code of Criminal Procedure exhibited the Ballistic Expert's reports and dropped the evidence of these prosecution witnesses. Learned trial Court has noted that these Chemical Analyser's reports are marked as Exhs. 277 and 278 under Section 293 of Code of Criminal Procedure as prior to that, summons issued to Ballistic Expert could not be served as one of the Deputy Directors is reported to be dead while another Chemical Analyser/Ballistic Expert, who has issued report, has retired and if his presence is to be secured, summons should be served to him 15 days ::: Uploaded on - 06/05/2017 ::: Downloaded on - 07/05/2017 00:50:35 ::: 14 apl235.17 prior to date of his appearance. It is, therefore, prima facie found that in view of evidence of Investigating Officer, cross-examination of Ballistic Expert, who has issued Exhs. 277 and 278, is necessary as both these documents came to be exhibited under Section 293 of Code of Criminal Procedure. However, fact remains that there could be no cross-examination of these Experts, which, in the result, shall prejudice the right of accused. Learned trial Court though has considered that Investigating Officer has admitted that he had not made enquiry with the Ballistic Expert regarding close fire range of country made pistol and Ballistic Expert can ascertain when last firing was made from the seized country made pistol and even noting that there is no such opinion given by Ballistic Expert, rejected the prayer of accused finding that details given in Exhs. 277 and 278 by the Chemical Analyser/Ballistic Expert are sufficient to explain the queries of accused. However, fact remains that apart from contents of these documents whatsoever, in view of evidence of Investigating Officer admitting facts as aforesaid, it is found that there is substance in the request of accused to summon Chemical Analyser/Ballistic Expert for cross-examination. Merely because trial is pending for sufficient period, that by itself can be no ground to reject such prayer of accused unless and until it is found by learned trial Court that such tactics are adopted by accused intentionally, just for the purpose of delay or for defeating the ends of justice, which from the above facts are apparently not noted. In the circumstances, impugned ::: Uploaded on - 06/05/2017 ::: Downloaded on - 07/05/2017 00:50:35 ::: 15 apl235.17 order passed below Exh. 291 is liable to be set aside. Needless to say that trial since has been prolonged for one or other reason for sufficient long time, accused shall cooperate during the course of trial.
18) Considering the fact that offence involved in the case is of 1993 and already about 23 years have lapsed and trial is yet to conclude, which is found to have reached its fag end and is fixed for recording statement of accused under Section 313 of Code of Criminal Procedure, applications, if any, are found made by accused for calling Sanctioning Authority as well as Chemical Analyser/Ballistic Expert, same shall be allowed by learned trial Court. Needless to say that accused shall cooperate with prosecution in view of the fact that trial is being prolonged for long period as aforesaid. In that view of the matter, criminal application is disposed of in the following terms :
(i) The criminal application is partly allowed.
(ii) The impugned order passed by learned Additional
Sessions Judge, Akola below Exhs. 287, 290 and 291 in Sessions Trial No.234/2002 is set aside.
(iii) Learned Sessions Judge, whosoever is seized with Sessions Trial No.234/2002, shall consider admissibility of documents marked as Exhs. 273 to 284 at the time of final hearing by ignoring the observations made in the impugned order.
(iv) Applications, if any, are made by accused within ::: Uploaded on - 06/05/2017 ::: Downloaded on - 07/05/2017 00:50:35 ::: 16 apl235.17 reasonable time for calling Sanctioning Authority as well as Chemical Analyser/Ballistic Expert for their cross-examination, same shall be allowed by learned trial Court.
(v) Interim order in force stands vacated.
JUDGE khj ::: Uploaded on - 06/05/2017 ::: Downloaded on - 07/05/2017 00:50:35 :::