Gujarat High Court
Sanjay Parbatbhai Chauhan vs Central Bureau Of Investigation on 10 December, 2018
Author: Sonia Gokani
Bench: Sonia Gokani
R/SCR.A/10500/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 10500 of 2018
==========================================================
SANJAY PARBATBHAI CHAUHAN
Versus
CENTRAL BUREAU OF INVESTIGATION
==========================================================
Appearance:
MR NIRAL R MEHTA(3001) for the PETITIONER(s) No. 1
MR RC KODEKAR(1395), MR MUKESH KAPADIA, for the RESPONDENT(s)
No. 1
PUBLIC PROSECUTOR(2) for the RESPONDENT(s) No. 2
==========================================================
CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 10/12/2018
ORAL ORDER
Rule. Learned Special PP, Mr. Kodekar, appearing with learned Advocate, Mr. Kapaida, waives service of rule for respondent No.1, whereas, the learned APP waives for the respondent-State.
1. The petitioner seeks to challenge the the order dated 15.11.2018, passed by the CBI Court No.1, City Civil Court, Ahmedabad, in CBI Case Nos. 1/2014, 2/2014 and 3/2014, whereby, the application for deciding the admissibility of the tentative exhibits given to documentary evidences, before the final arguments of the parties, came to be rejected.
2. In the case of one Amit Jethwa, who had complained of illegal mining activities in and around Gir Forest Sanctuary, came to be murdered, and therefore, an FIR being I-C.R. No. 163 of 2010 came to be lodged with Sola Police Station under Sections 302 and 114 of the Indian Penal Page 1 of 15 R/SCR.A/10500/2018 ORDER Code, 1860, and Sections 25(1) of the Arms Act, 1959. Since, the original complainant was not satisfied with the investigation by the local police, he made an application for transfer of investigation to CBI and this Court vide order dated 25.09.2012, transferred the investigation to CBI. CBI, after due investigation, filed the charge-sheet and committed the case to the Court of Sessions and the same were eventually consolidated and numbered as CBI Case Nos. 1, 2 & 3 of 2014. During the course of trial, in all 195 witnesses came to be examined. During the course of trial, since, most of the witnesses turned hostile, the complainant approached this Court by way of a writ-petition seeking certain reliefs, including the request of de novo trial, which came to be allowed by this Court, directing de novo trial with certain specific directions.
2.1 Challenging the said order the original accused had approached Hon'ble the Apex Court by way of Special Leave Petition (Criminal) Nos. 4965 of 2017, 5086 of 2017, 5309 of 2017 and 5321 of 2017. As the events had indicated, since, the issues in these proceedings were interconnected, they were heard together by the Apex Court and while upholding the order of this Court of de novo trial, due to exceptional circumstances of the case, which had propelled the High Court to direct retrial, with a slight modification that only 26 witnesses were directed to be reexamined Page 2 of 15 R/SCR.A/10500/2018 ORDER instead of all the witnesses. So as to ensure that the trial remains fair in literal sense of the term, certain accused were directed to be remained in confinement and to be released, but, should stay outside the State of Gujarat. Apt would be to reproduce Paragraph-47, which read thus:
"47) Going by the exceptional
circumstances in which retrial is
ordered by this High Court, and is being maintained in principle, with only modification that instead of all witnesses, 26 witnesses would be re- examined, we are of the opinion that in order to ensure that there is a fair trial n literal sense of the term, at least till the time eight eye-witnesses are re-examined, Mr. Solanki should remain in confinement and he be released thereafter with certain conditions, pending remaining trial. We, therefore, dispose of Criminal Miscellaneous Petition No. 14006 of 2015 with the following directions:
a) Bail granted to Mr. Solanki by this Court vide order dated February 25, 2014 stands cancelled for the time being. He shall be taken into custody and shall remain in custody during the period eight eye-witnesses are re-
examined.
b) The trial court shall summon 26 witnesses who are to be examined afresh. In the fist instance, 8 eye-
witnesses shall be summoned and examined on day to day basis. Once their depositions in the form of examination-in-chief and cross-
Page 3 of 15R/SCR.A/10500/2018 ORDER examination are recorded, Mr. Solanki shall be released on bail again on the same terms and conditions on which he was granted bail earlier by this Court by order dated February 25, 2014. After Mr. Solanki comes out on bail, there shall be an additional condition, namely, till the recording and completion of the statements of other witnesses, he shall not enter the State of Gujarat. To put it clearly, after Mr. Solanki is released on bail, he shall immediately move out of the State of Gujarat and shall not enter the said State till the completion of remaining evidence, except on the days of hearing when he would be appearing in the Court. It will be open to the trial Court to add any further conditions, if the circumstances so warrant.
c) That trial Court shall also endeavour to record the remaining evidence as well as expeditiously as possible by conducting the trial on day to day basis."
2.2 It appears that the de novo trial, as has been directed by the Apex Court, has been completed by examining 26 witnesses. The Court has also recorded further statements of the accused under Sections 313 of the Code and the matter has now been fixed for final arguments of the prosecution as well as the defence.
2.3 During the course of recording of evidence in de novo trial and also in the trial which was conducted earlier, on account of certain objections raised by the accused persons, Page 4 of 15 R/SCR.A/10500/2018 ORDER CBI Court has applied the ratio laid down in the case of 'BIPIN SHANTILAL PANCHAL VS. STATE OF GUJARAT', (2001) 3 SCC 1.
2.4 An application came to be tendered by the present petitioner, urging that before the Court hears the final arguments, the admissibility of the evidence tendered should be decided first. It is urged that all the objections, which have been raised for the admissibility of the evidence should be decided prior to the final arguments and if, such an opportunity is not given, it is going to seriously affect the right of the accused of defence.
2.5 This is objected to by the learned APP appearing for the CBI and the CBI Court after hearing both the sides, rejected such application. It is held and observed by the CBI Court that, as per the decision of the Apex Court in 'BIPIN SHANTILAL PANCHAL' (Supra), the trial Court can make note of the objections, which have been raised, and tentatively mark the documents and given an exhibit number, subject to such objections being decided at the time of delivering final judgment. If, the objections, which are raised, are sustainable, such evidence is to be excluded from consideration. Accordingly, the application has been rejected by the CBI Court on 15.11.2018.
Page 5 of 15R/SCR.A/10500/2018 ORDER 3. This Court has heard the learned Advocate, Mr. Mehta, appearing for the
petitioner, who has urged that the documents have been given tentative exhibit numbers. He has relied on the decision in 'BIPIN SHANTILAL PANCHAL' (Supra) so also the decision of this Court in 'Ramniklal CITATION TO BE GIVEN BY YOUR LORDSHIP,. He has urged that in each tentative exhibit number given, there are various documents, which also includes news paper cuttings etc., and therefore, it is extremely cumbersome to argue, whether they are going to be given exhibit number or not. If, the same are exhibited that would also save the huge time of the Court. He, further, has urged that the petitioners would be groping in the dark, if, these documents are not exhibited first in point of time, as to whether any emphasis is to be laid on that aspect. It is not only the admissibility, which would be important, its appreciability also shall have to be considered at the time of arguments. He, therefore, has urged that the CBI Court has committed the serious error in not accepting the request of the petitioner for deciding the issue of tentative exhibits.
4. Learned Special Prosecutor, Mr. Kodekar, appearing with learned Advocate, Mr. Kapadia, have jointly urged that the interference of this Court at this stage would be contrary to the Page 6 of 15 R/SCR.A/10500/2018 ORDER ratio laid down in 'BIPIN SHANTILAL PANCHAL' (Supra). It is, further, argued that in case of 'Ramnik__' (Supra), at the best, the Court had spoken about the documents, which itself is admissible and those documents, which are inadmissible. However, that can be distinguished by the Court at the time of final judgment and for that the trial may not be hampered. They have also reminded this Court of the directions issued by the Apex Court in Paragraph-47 of its order, emphasizing that the witnesses were to be summoned and examined on day to day basis. It is urged that the very object of giving exhibit numbers at the time of final judgment is to save the matter being remanded back from the appellate Court on that count and the trial Court can ensure that the trial gets over expeditiously. According to them, the matter is of the year 2010 and the nearly 8 years have passed since then.
5. Having thus heard both the sides and also on perusal of the documents, this Court notices that the Apex Court had directed retrial by examining 26 witnesses and they were directed to be summoned and examined on day to day basis. The apex Court had expressed the urgency and had issued directions at Paragraph-47 of its order. However, that would not mean that this Court is no to regard the request made by the petitioner- accused in relation to the admissibility of the documents. The question, therefore, that arises Page 7 of 15 R/SCR.A/10500/2018 ORDER before this Court is as to whether, the trial Court needs to take into consideration the decision in 'BIPIN SHANTILAL PANCHAL' (Supra) and decide in regard to those documents, which have been tentatively exhibited prior in point of time or is it necessary for the trial Court to consider, as to whether, there are any admissible evidence are there, as provided in the case of 'Ramniklal __'(Supra).
5.1 Profitable it would be to refer to the decision of the Apex Court in 'BIPIN SHANTILAL PANCHAL' (Supra), at this stage, where, the Apex Court held and observed as under:
"10. On that day the defence raised another objection regarding admissibility of another document. The trial judge heard elaborate arguments thereon and upheld the objection and consequently refused to admit that particular document. What the prosecution did at that stage was to proceed to the High Court against the said order and in the wake of that proceeding respondent filed an application on 9.11.2000, for enlarging him on bail on the strength of the order passed by this Court on 31.3.2000 (extracted above).
11. We are compelled to say that the trial judge should have shown more sensitivity by adopting all measures to accelerate the trial procedure in order to reach its finish within the time frame indicated by this Court in the Page 8 of 15 R/SCR.A/10500/2018 ORDER order dated 31.3.2000 since he knew very well that under his orders an accused is continuing in jail as an under-trial for a record period of more than seven years. Now, we feel that the Additional Judge, whether the present incumbent or his predecessor, was not serious in complying with the directions issued by this Court, though the parties in the case have also contributed their share in bypassing the said direction.
12. As pointed out earlier, on different occasions the trial judge has chosen to decide questions of admissibility of documents or other items of evidence, as and when objections thereto were raised and then detailed orders were passed either upholding or overruling such objections. The worse part is that after passing the orders the trial court waited for days and weeks for the concerned parties to go before the higher courts for the purpose of challenging such interlocutory orders.
13. 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, Page 9 of 15 R/SCR.A/10500/2018 ORDER 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.
14. When so recast, the practice which can be a better substitute is this:
Whenever an objection is raised during evidence taking stage 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 Page 10 of 15 R/SCR.A/10500/2018 ORDER the court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed.)
15. 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.
16. We, therefore, make the above as a procedure to be followed by the trial courts whenever an objection is raised regarding the admissibility of any material or any item of oral evidence."
5.2 It can be seen that this Court in 'Ramniklal__' (Supra) has held that when a case falls within one category of case and the document, which is sought to be proved, itself, is inadmissible in evidence and if, the objection Page 11 of 15 R/SCR.A/10500/2018 ORDER is raised, then, the procedure laid down in 'BIPIN SHANTILAL PANCHAL' (Supra) can be followed. The Court can give tentative exhibit number to such document and deal with the admissibility at the final stage of the judgment. Although, when a case falls within the second category, where, the objection raised does not dispute the admissibility of the document in question, but, as directed, it is more of consolidating the same and the irregularity of such a document is to be decided, when it raised. Since, it would be enabling the parties tendering the documents of curing the defects by resorting to such a mode.
5.3 It is, thus, quite obvious that whenever any document is sought to be proved and the Court is of the opinion that the same is inadmissible in the evidence, but, when its admissibility is questioned by the other side, the tentative exhibit is permitted. As according to the Apex Court, it is an archaic practice and though, there may be an objection raised regarding admissibility of any material evidence, the Court needs to proceed further without passing an order on such objections. The practice, which is better considered substitute, as and when the objection is raised during the evidence taking stage, regarding admissibility of any material or oral evidence, the trial Court can mark the documents tentatively as an exhibit in the case. So the Page 12 of 15 R/SCR.A/10500/2018 ORDER recording of object part by the trial Court, the request is to decide such objection at last stage in the final judgment. If, the Court finds that at the final stage, the objection raised is sustainable, then, such can evidence can be excluded from consideration. The Court is also shown the advantage of the same that at the evidence taking stage, it would be waste of time of the Court and the Court can continue to examine the witnesses and the witnesses need not wait for hours and secondly, before the superior when the objection is re-canvassed, either in appeal or in revision, against the final judgment of the trial Court, the Court can determine the correctness of the view.
5.4 Being conscious of the fact that presently against various documents, which have been tentatively exhibited at the time when the trial had been proceeded firstly and also thereafter, when the retrial was directed by the Apex Court, voluminous documents have been given the tentative exhibit numbers, as is given to understand to this Court. The emphasis all along on the part of learned Advocate, Mr. Mehta, is to make a distinction between those which can be categorized in one category and the others in the second category, as per the case of 'Ramniklal__' (Supra).
5.5 This Court notices from the order passed
Page 13 of 15
R/SCR.A/10500/2018 ORDER
by the CBI Court even taking resort to the
decision of 'Ramniklal__' (Supra), bearing in
mind the voluminous documents, the trial Court has deemed it appropriate not to accede to the request of giving this categorization of both the documents. Since, the case is at the ultimate stage of final arguments of both the sides, instead of categorizing the evidence in both the categories, as has been sought by the petitioner, let the ratio laid down in the case of 'BIPIN SHANTILAL PANCHAL' (Supra) be scrupulously followed and the order of the trial Court being of considering both the admissibility part of the documents so also the appreciability part at the stage of final judgment, this Court finds no error in the order passed by the CBI Court. Had such a categorization been done, at the time, when the evidence was being recorded, then, it would have been a different story. Now, when the further statements of the accused also have been recorded and the matter is pending for final submissions of both the sides, carving out any category at this juncture would further delay the trial. Moreover, the Court also is to regard the urgency expressed in Paragraph-47 of its order by the Apex Court, while directing the retrial and the examination of the witnesses on day to day basis. Considering the overall scenario in the mind, the order impugned being in consonance with the decision of the Apex Court in 'BIPIN SHANTILAL PANCHAL' (Supra), this petition does Page 14 of 15 R/SCR.A/10500/2018 ORDER not deserve to be entertained.
6. Resultantly, this petition fails and is REJECTED. The trial Court is directed to, bearing in mind the directions issued by the Apex Court in its order so also the decision in 'BIPIN SHANTILAL PANCHAL' (Supra), and to proceed urgently. Rule is discharged.
(SONIA GOKANI, J) UMESH/-
Page 15 of 15