Gauhati High Court
Guwahati Sub-Divisional Market ... vs Suresh Sikaria on 25 June, 2013
Author: A. C. Upadhyay
Bench: A. C. Upadhyay
IN THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Mizoram & Arunachal
Pradesh)
CRIMINAL REVISION PETITION NO. 552/2012
Guwhati Sub-Divisional Market Committee,
Uparhali, Kamrup, at Guwahati-781122,
Assam, represented by its Secretary-in-
Charge Sri Muzamul Haque.
....APPELLANT
-Versus-
Sri Suresh Sikaria,
Director of NU Foods,
Guwahati-6.
...RESPONDENT/OPPOSITE PARTY
BEFORE
THE HON'BLE MR. JUSTICE A. C. UPADHYAY
For the Appellant :: Mr. P. Kataki
Mr. D. K. Bagchi
Mr. D. Chakraborty
For the Respondent :: Mr. K R Surana
Mr. N. Sarma
Mr. A. Choudhury
Date of hearing :: 03.06.2013
Date of Judgment ::
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JUDGMENT AND ORDER (CAV)
By filing this revision application, the petitioner has challenged the order
dated 09.05.2012 passed by the learned Chief Judicial Magistrate, Kamrup at
Guwahati in C.R. Case No. 5535C/2008 by which the petition filed by the
complainant opposite party under Section 294 Cr.P.C. 1973 was allowed.
2. I have heard Mr. P. Kataki, learned Counsel appearing for the petitioner
and Mr. K R Surana, learned counsel representing the respondent.
3. The facts leading to filing of this revision application, may be stated as
follows:
The complainant-petitioner is a duly constituted Market Committee
established by the Government of Assam, in exercise of power conferred under
Section 7 of the Assam Agricultural Produce Market Act, 1972.
Complaint case bearing C.R. Case No. 5535C/2008 was filed by the
petitioner Committee, in the Court of the learned Chief Judicial Magistrate,
Kamrup at Guwahati, against the opposite party alleging inter-alia that the
opposite party firm is dealing with specified Agricultural Produces, namely,
wheat products without making payment of any cess, as required under Section
21 of the said Assam Agricultural Produce Marketing Act, 1972. The opposite
party also engaged itself in the said illegal business, within the prescribed area,
without obtaining valid License under Section 13(2) of the said Act. As alleged
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in the complaint, as on 9th October, 2008, around 400 packets of such wheat,
belonging to the opposite party firm was seized, in presence of witnesses and
hence they would be liable to pay penalty under Section 39(2) and 39(3) of the
said Act. Learned trial Court took cognizance of the offence and issued process
for appearance of the accused/respondent. On appearance of the
accused/respondent, learned trial Court explained the particulars of the offence
under Section 39(2) and (3) of Assam Agricultural Produce Marketing Act, 1972.
The said complaint case is presently pending in the Court of learned Chief
Judicial Magistrate, Kamrup at Guwahati for disposal.
4. In the meantime, on the date fixed for recording evidence of the
witnesses of the complainant, the accused/respondents filed an application
invoking the provisions of Section 294 of the Code of Criminal Procedure, 1973,
along with as many as 30 numbers of different documents, with a prayer for
issuing direction to the complainant, petitioner committee to admit the said
documents, before the evidence of the complainant was recorded. The
petitioner accordingly filed written objection to the application filed by the
accused respondent under Section 294 Cr.P.C. The petitioner raised objection
on the ground that the right of the accused to produce any document, would
accrue to him only after the accused enters the defence and after recording of
the evidence by the complainant/prosecution.
5. The learned counsel appearing for the petitioner pointed out that the
accused person resorting to the procedure laid down under Section 294 Cr.P.C,
by producing documents in his defence even before completion of the recording
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of the evidence of the complainant witnesses is illegal. Learned counsel for the
petitioner submitted that the complainant may be asked to admit or deny the
documents in defence submitted in terms of Section 294 of CrPC only by the
accused after closing of the evidence of complainant's witnesses.
6. Mr. Kataki, learned counsel appearing for the petitioner relying on the
decision of Apex Court reported in (2005) 1 SCC 568 (State of Orissa Vs.
Debendra N ath P adhi), submitted that the right of the accused in filing the
documents during the course of the Trial would accrue only after the accused
entered the defence and not prior to that. In the instant case, without
examination of the complainant witnesses, the accused person sought to
introduce some documents by resorting to the procedure laid down under
Section 294 Cr.P.C.
7. In the State of Orissa Vs. Debendra N ath P adhi (Supra ), the Apex
Court observed that insofar as the accused is concerned, his entitlement to
seek order under Section 91 of the Code of Criminal Procedure, 1973 would
ordinarily not come till the stage of defence. Summons to produce documents
in terms of provision of Section 91 of Code of Criminal Procedure, 1973 can be
invoked only at the stage of taking defence evidence. The observation of the
Apex Court reads as follows:
"25. ... ... ... I f any docum ent is necessary or desirable for
the defence of the accused, the question of invoking
Section 91 at the initial stage of fram ing of a charge
w ould not arise since defence of the accused is not
relevant at that stage. W hen the section refers to
investigation, inquiry, trial or other proceedings, it is to be
borne in m ind that under the section a police officer m ay
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m ove the court for summ oning and production of a
docum ent as m ay be necessary at any of the stages
m entioned in the section. I nsofar as the accused is
concerned, his entitlement to seek order under Section 91
w ould ordinarily not com e till the stage of defence. W hen
the section talks of the docum ent being necessary and
desirable, it is im plicit that necessity and desirability is to
be exam ined considering the stage w hen such a prayer for
sum m oning and production is m ade and the party w ho
m akes it, w hether police or accused. I f under Section 227,
w hat is necessary and relevant is only the record
produced in term s of Section 173 of the Code, the accused
cannot at that stage invoke Section 91 to seek production
of any docum ent to show his innocence. Under Section 91
sum m ons for production of docum ent can be issued by
court and under a w ritten order an officer in charge of a
police station can also direct production thereof. Section
91 does not confer any right on the accused to produce
docum ent in his possession to prove his defence. Section
91 presupposes that w hen the docum ent is not produced
process m ay be initiated to com pel production thereof.
26. Reliance on behalf of the accused w as placed on som e
observations m ade in the case of Om Parkash Sharm a v.
CBI . I n that case the application filed by the accused for
sum m oning and production of docum ents w as rejected by
the Special Judge and that order w as affirm ed by the High
Court. Challenging those orders before this Court, reliance
w as placed on behalf of the accused upon Satish M ehra
case 1 . The contentions based on Satish M ehra case 1 have
been noticed in para 4 as under: (SCC p. 682)
"4. The learned counsel for the appellant reiterated the
stand taken before the courts below w ith great
vehem ence by inviting our attention to the decision of this
Court reported in Satish M ehra v. Delhi Adm n.1 laying
em phasis on the fact that the very learned Judge in the
High Court has taken a different view in such m atters, in
the decision reported in Ashok K aushik v. State. M r Altaf
Ahm ed, the learned ASG for the respondents not only
contended that the decisions relied upon for the
appellants w ould not justify the claim of the appellant in
this case, at this stage, but also invited, extensively our
attention to the exercise undertaken by the courts below
to find out the relevance, desirability and necessity of
those docum ents as w ell as the need for issuing any such
directions as claim ed at that stage and consequently
there w as no justification w hatsoever, to intervene by an
interference at the present stage of the proceedings."
27. I nsofar as Section 91 is concerned, it w as rightly held
that the w idth of the pow ers of that section w as unlim ited
but there w ere inbuilt, inherent lim itations as to the stage
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or point of tim e of its exercise, com m ensurate w ith the
nature of proceedings as also the com pulsions of
necessity and desirability, to fulfil the task or achieve the
object. Before the trial court the stage w as to find out
w hether there w as sufficient ground for proceeding to the
next stage against the accused. The application filed by
the accused under Section 91 of the Code for sum m oning
and production of docum ent w as dism issed and order w as
upheld by the High Court and this Court. But observations
w ere m ade in para 6 to the effect that if the accused could
produce any reliable m aterial even at that stage w hich
m ight totally affect even the very sustainability of the
case, a refusal to look into the m aterial so produced m ay
result in injustice, apart from averting an exercise in
futility at the expense of valuable judicia1/ public tim e,
these observations are clearly obiter dicta and in any case
of no consequence in view of conclusion reached by us
hereinbefore. Further, the observations cannot be
understood to m ean that the accused has a right to
produce any docum ent at the stage of fram ing of charge
having regard to the clear m andate of Sections 227 and
228 in Chapter 18 and Sections 239 and 240 in Chapter
19."
8. However, learned counsel appearing for the respondent relied on the
decisions of the P anjab and Haryana High Court reported in 1987 CRI. L.
J. 1335, Vinodkum ar and others Vs. State of Haryana, which reads as
follows:
"3. Undeniably the trial of a w arrant case on a police
report com m ences w hen the accused appears or is
brought before a M agistrate. The first step to be taken by
the M agistrate in this regard is to satisfy him self that the
provisions of Section 207 i.e. w ith regard to the supply of
the docum ents mentioned therein, have been com plied
w ith. The next step is to apply m ind on the police report
and the docum ents sent along therew ith. Sim ultaneously,
he has been given the pow er to exam ine the accused at
that stage as thought necessary and then the prosecution
and the accused have also the right to an opportunity of
being heard. N ow w hen an opportunity of being heard is
conferred as of right on the accused, it has to be seen
w hether there are any regulating factors in the Code by
w hich such opportunity is to be availed of. One such
pointer is Section 294 of the Code, w hich is applicable to
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all trials inclusive of w arrant case trials. I t is ex facie
patent that the prosecution w hile presenting the police
report can support the sam e w ith docum ents and they are
required to be considered at the tim e of the fram ing of
charge. I t does not hold to any reason that the accused
cannot at that stage produce his docum ents. This seems
to be the reason for such a provision under Section 294 of
the Code subject of course to the accused's docum ents
being genuine. And at that stage the docum ents sought to
be introduced by the accused are required to be included
in a list and the prosecutor can be called upon to adm it or
deny the genuineness of each such docum ent. This right is
not m erely conferred on the accused, but a corresponding
right is also vested in the prosecution. Even the
docum ents subm itted along w ith t he report under
Section 173 of the Code relied upon by the prosecution
can be put to the accused and he can be asked to adm it or
deny the genuineness of each such docum ent. This does
aw ay w ith the form al necessity of proving the
genuineness of the docum ent and such docum ent can
thereafter be read in evidence w ithout proving of the
signature of the person to w hom it purports to be signed.
The joint effect of the aforesaid tw o provisions is to put at
par the prosecution and the accused so far as the
docum entary evidence is concerned. One cannot be
allow ed to score over another by taking shelter in
procedural w rangles and tactical gim m icks. Thus, I am of
the considered view that the learned M agistrate in
suggesting to postpone adm ission of these docum ents at
this stage on the ground that the com plainant w as not
before him , tended to thw art the rights of the accused to
have his docum ents adm itted at that stage so as to be
considered w hile considering the question of charge.
Thus, in the interest of justice, it becom es essential to
quash his im pugned order and regulate the trial by
suitable directions."
9. In the case of M d. Akbar and another Vs. State of Andhra P radesh
reported in 2002 Cri. L.J. 3167, Andhra Pradesh High Court while discussing
the provision of Section 294 of CrPC observed as follows :
8
"The docum ents produced w ith the petition are certified
copies of Order of Civil Court, pahanies and F.I .R., w hich are
all public docum ents w ithin the m eaning of Section 74 of
Evidence Act. As per Sec. 76 of the Evidence Act, certified
copies of public docum ents can be issued to any body, and as
per Sec. 77 of the Evidence Act certified copies of public
docum ents can be produced in proof thereof. Sub-Section [3]
of Section 294 Cr.P .C. applies to private docum ents, but not to
public docum ents since question of proof of signatures in the
certified copies of public docum ents does not arise. I f
docum ents, w hich are not public docum ents, are sought to be
relied on by the prosecution only, question of proof of those
docum ents and signatures therein w ould arise. I n this case
since all the three docum ents produced by the prosecution are
public docum ents w ithin the m eaning of Sec. 74 of the
Evidence Act, strictly speaking no form al proof thereof is
necessary and so they can be adm itted in evidence by virtue
of Sec. 77 of the I ndian Evidence Act. So I find no m erits in
this petition."
However, in the instant case, there is no indication that the documents
submitted by the defence are public documents within the meaning of
Section 74 of Evidence Act. Therefore, the decision of the Andra Pradesh
High Court in M d. Akbar (supra) would not apply.
10. Mr. P. Kataki, learned counsel appearing for the appellant by referring
to the decision of the Hon'ble Supreme Court in Orissa Vs. Debendra N ath
P adhi (Supra ), submitted that the Supreme Court, while discussing the
rights of an accused under Section 91 CrPC to produce documents in his
possession to prove his defence in clear terms, has observed that the
provision of law pre-supposes with reference to the stage when a prayer is
made for production of such documents. The width of power of that Section
was unlimited, but there were inbuilt, inherent limitations as to the stage or
point of time of its exercise, commensurate with the nature of proceedings as
also the compulsions of necessity and desirability, to fulfill the task or achieve
9
the object. Before the trial court, the stage was to find out whether there was
sufficient ground for proceeding to the next stage against the accused.
11. Apparently, in terms of the provision of Section 294 of CrPC, if any
document is necessary or desirable for the defence of the accused, the
question of invoking the provision of Section 294 CrPC, would not arise at any
stage unless the stage is set for the accused to take his defence. The section
begins with the sentence where any document is filed before any Court by
the prosecution or the accused, the particulars of every such documents shall
be included in the list and the prosecution on the accused, as the case may
be shall be, or their pleader shall be called upon to admit or deny the
genuineness of each such documents.
12. Though there is no indication of the stage at which the provisions of
Section 294 can be resorted to, but by adopting the principle laid discussed
by the Apex Court in Debendra N ath P adhi (Supra ), it will have to be
contrived that inherent limitations as to the stage or point of time of its
exercise, commensurate with the nature of proceedings as also the
compulsions of necessity and desirability, to fulfill the task or achieve the
object. Before the trial court the stage was to find out whether there was
sufficient ground for proceeding to the next stage against the accused.
Therefore, before the accused enters into his defence, the complainant has to
adduce evidence to establish the charge, then only question of submitting
documents in defence on behalf of the accused, would arise. I would hasten
to add here that the accused cannot be denied the right to introduce any
10
documents in his defence during cross-examination of the prosecution
witness.
13. In view of above discussion, this Court is of the view that the decision
of the High Court of Punjab and Haryana, in Vinod K um ar (supra) cannot
be pressed into service in the instant case.
14. In a criminal trial, the burden is on the prosecution to prove the
accusations against the accused beyond reasonable doubt. Both prosecution
and the accused would follow the procedure prescribed under the code of
Criminal Procedure 1973 during trial. Accordingly, an accused after framing of
a charge or explaining of the offence alleged has to wait for the next stage to
follow. Skipping the steps by jumping the procedure provided under the law,
however, would not be legally permissible. After the charge is framed or the
offence alleged is explained to the accused in a criminal trial, the prosecution
is called upon to establish the charge by adducing its evidence. At this stage,
the defence will have every right to cross examine the prosecution witnesses
in support of its defence stand. It is needless to emphasize and point out the
scope of cross-examination of a witness on behalf of the accused facing the
charges. On the conclusion of the recording of the evidence of the
prosecution witnesses, the trial Court shall as per provision of Section 313
Code of Criminal Procedure 1973, examine the accused and record his
statement of defence by putting all such incriminating materials arising
against the accused. At this stage of the trial, if the accused has any defence
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to take, he may do so by stating his defence stand to the trial Court. Though,
Section 294 CrPC do not specify the stage of the trial at which the provision
can be resorted to by filing such documents on behalf of the accused for
admission by the prosecution but such a stage would be apparent only when
the incriminating materials are established by the prosecution evidence
against the accused. However, there is no bar in showing and confronting
any documents in defence of the accused, to the prosecution witnesses,
during cross-examination. More so, allowing the defence to introduce its
documents in defence for admission by the prosecution under Section 294 of
CrPC, at any stage of the proceeding, would also unnecessarily entail delay in
disposal of the lis.
15. In view of the above discussion, this Court is of the view that the
accused cannot be permitted to file documents as per provision of Section 294
CrPC in his defence, at any stage of a proceeding, calling upon the prosecution
to admit such documents before adducing the prosecution evidence and
without taking his own defence stand. An application under Section 294 CrPC
can be submitted on behalf of the accused on the conclusion of the recording of
the prosecution evidence and after recording of the statement of the accused in
terms of the provision of Section 313 CrPC. However, it must be made clear
that the accused, may, if so advised, confront the prosecution witnesses with
the documents so submitted by him during trial at the appropriate time.
Nevertheless, the accused after giving his own reply to the incriminating
materials appearing against him, in the case by giving his own defence stand,
will be at liberty to file application under Section 294 CrPC, with a prayer for a
12
direction by the Court to call upon the prosecution to deny or admit the
genuineness of the documents in his defence.
16. In view of the above, the impugned order dated 9.5.2012 passed by the
learned trial Court is set aside and the matter is remitted to the trial Court with
a direction to consider application under Section 294 of CrPC, filed by the
respondent/opposite party, only after recording his statement under Section
313 CrPC. However, the respondent/opposite party shall not be debarred from
using those documents indicated in his application under Section 294 CrPC,
during cross-examination of the complainant's witnesses.
17. With the above observations and directions, this revision petition is
disposed of.
JUDGE
Pratibha/TDR
13
IN THE SUPREME COURT OF INDIA
Criminal Appeal Nos. 157, 179 and 224 of 2007
Decided On: 19.04.2010
Appellants: Sidhartha Vashisht @ Manu Sharma
Vs.
Respondent: State (NCT of Delhi)
In any case, both Section 293 and Section 294 of the Code which dispense with
formal proof of documents under certain circumstances make it abundantly clear
that the documents sought to be relied upon must be the originals.
MANU/MH/0391/2006: Peacock Industries Ltd., Mr. Daud Ali Dawood,
Manging Director of Peacock Industries Ltd. and Mr. Munwar Hussain
working at Peacock Industries Ltd. and Ors. etc. ect.
Vs.
Respondent: Budhrani Finance Ltd. and State of Maharashtra and Ors. etc.
etc.
Equivalent Citation: 2006(2)ALD(Cri)26, IV(2006)BC302, 2006(5)MhLj162
45. Keeping the present scenario, in so far as cases under Section 138 of the Act
are concerned, in view and considering the request of all the learned Counsel for
the parties, I deem it appropriate, in order to accomplish the underline object of
the Act, to pass the following guide-lines/directions:
(a) The directions passed by the Division Bench in KSL and Industries
Ltd.'s case must be followed scrupulously by all the courts dealing with
cases underSection 138 of the Act. The Courts should also bare in mind
14
the judgment of this Court in Bhaskar Sen v. State of Maharashtra and Ors.
MANU/MH/0698/2004: 2004(4)MhLj1115 while dealing with the
application/s for exemption. Similarly, while recording evidence the
procedure laid down by the Supreme Court in Bipin Shantilal Panchal's
case must be followed whenever an objection is raised regarding the
admissibility of any material or any item of oral evidence.
(b) On receiving a complaint under Section 138 of the Act, the Magistrate
should apply his mind to the complaint at the very inception and see
whether a case is made out against the accused person/s before issuing
process to them on the basis of the complaint. The complaint must
contain material facts and particulars constituting an offence
under Section 138 to enable the Magistrate to make up his mind for
issuing process under Section 204 of the Code.
(c) The Court must direct the complainant to adopt, all the modes of
service of summons as provided for in Section 144 of the Act and need
not depend only upon the police machinery. If summons is served on the
accused person/s either by speed post or by courier services (as and
when they approved by a Court of Sessions) or with the help of police or
by E-mail as observed in KSL and Industries Ltd. case, the Complainant
should file affidavit of service with the proof of service and if the Court is
satisfied about the service, such service of summons may be treated as a
good service and in that case the Court can proceed with the case without
awaiting service of summons through Police.
(d) The Magistrate issuing summons to the accused or a witness must
direct a copy of summons to be served at the place where such accused
or witness ordinarily resides or carries on business or personally works for
gain as provided for in Section 144(1) of the Act.
(e) It is also open for the Court, in a given case, to use the police staff
attached to the Court, outside Court working hours, to serve the
summons on accused or witness residing within the jurisdiction of the
Court.
(f) Where an acknowledgement purporting to be signed by the accused or
the witness or an endorsement purported to be made by any person
authorised by the postal department or courier services that the accused
or the witness refuse to take delivery of summons has been received, the
Court issuing summons may declare that the summons has been duly
served as provided for in Section 144(2) of the Act.
(g) The Complainant while filing the complaint under Section 138 of the
Act should avoid adding unnecessary person/s as accused in the case as
also making irrelevant/unnecessary averments/statement in the
complaint, keeping scope for the accused to dispute the same at initial
stages and seek to quash the process either in revision before the
Sessions Court or in writ petition in the High Court.
(h) The Complainant/s should be more diligent while filing the complaint
against a company/firm. Instead of adding all the Directors/Partners of
the company/firm as accused, the complaint should be filed only against
the person/s "in charge of, and responsible for" the conduct of the
business of the company/firm at the time the offence was committed, as
contemplated under Section 141 of the Act. He should make a categoric
averment in the complaint making it clear that accused was/were in
charge of, and responsible for the conduct of the business of the
company/firm.
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(i) It is possible, in a given case, the Complainant while filing the
complaint was not knowing as to who was/were the person/s in charge of
and responsible for the conduct of the business of the company/firm at
the time of the offence and may, therefore, add all the Directors/Partners
as accused stating that at the relevant time they all were in-charge of and
responsible for the conduct of the business of the company/firm. In such
case/s, after service of summons on all the Directors/Partners, if the
statement is made on behalf of the company/firm supported by a
resolution of the Board of Directors or any other authenticate document,
or by placing a deed of partnership or a deed of retirement on record,
indicating the name/s of such Director/s/Partner/s of the company/firm,
the Complainant may delete the name/s of other Directors/Partners from
the array of the accused to avoid further proceedings for quashing by
such directors/partners to avoid further delay in disposal of the case. The
complainant, however, cannot be compelled to do so.
(j) The Court, on being satisfied, may give option to the Complainant to
delete the name/s of all such accused who was/were not in charge of and
was/were not responsible for the conduct of the business of the
company/firm and pass order of discharge or acquittal, as case may be, in
respect of such accused.
(k) Service of summons on the director/s or partner/s at the registered
address of the company/firm must be treated as good service that being a
place where the accused carries on business for gain as provided for
under Section 144(2) of the Act.
(l) The complainant should, as far as possible, file copies of all the
relevant and necessary documents with the complaint duly
attested/endorsed by him or his advocate as true copies and keep
originals ready for perusal of the Court at the stage of verification and
issue of process. The Courts should, avoid to keep original documents on
record at that stage.
(m) The Court must call upon the accused or his pleader, as provided for
under Section 294 of the Code, to admit or deny the genuiness of the
documents, other then the documents which have presumptive value in
law. That would help the Complainant to know which of the documents he
would have to prove by adopting such mode, as may be advised, during
his own or his witnesses' examinations in chief on affidavit. The procedure
underSections 294, should be followed before the complainant files his
affidavit under Section 145(1) of the Act.
(n) The Complainant should avoid filing of unnecessary and irrelevant
documents either with the complaint or at any subsequent stage including
the stage of evidence being recorded orally or on affidavit. He should, as
far as possible, rely upon the documents which have presumptive value
and file original documents in support of the averments in the complaint
to avoid further proceedings challenging the genuineness and/or
admissibility of the documents at the stage when they are produced on
record.
(o) The documents that may be relevant and necessary to be filed with
the Complaint under Section 138 of the Act, would be as follows:
dishonoured cheque/s; bank memo of drawer's bank; debit advise of
drawee's bank; office copy of the notice endorsed by an advocate or a
16
party as true copy with the acknowledgement receipt and/or postal
certificate and/or document evidencing despatch of notice; returned
envelope, if the notice was refused; reply, if any, to the notice by the
accused; office copy of the bills or invoices, if any, with the endorsement
of the advocate or the complainant as true copy; original agreement, or
other document, if any, executed between the parties reflecting the
transaction for which the cheque was issued; etc.
(p) The Complainant should file his affidavit in lieu of examination in chief
with all the documents to be exhibited in the court. The affidavit should
be in the form, as if he is giving oral evidence in the Court, proving all the
documents objected to by the accused and it should not be, in any case,
in the form of written argument and avoid reproduction of the complaint
as it is. The court on the very date shall see that a copy of the affidavit
with all the proposed exhibits is served on the accused and then grant a
short adjournment, if prayed for, to enable the accused to read it and
raise an objection, if any, regarding admissibility of the document/s or
any item of evidence. On the adjourned date of hearing the accused
should place his written objection, if any, on record which the Magistrate
should make note of and mark the objected document/s, (other than the
documents which have presumptive value in law) tentatively as exhibits,
as observed in Bipin Panchal's case, or mark it for identification where the
objection is with regard to the mode of proof, alleging the same to be
irregular or insufficient to be decided at the stage of final judgment. If the
objection is oral, raised in the course of recording of oral examination-in-
chief, the Court should note the objected item of the evidence or the
document and mark it tentatively as exhibit or for identification, as case
may be, to be decided at the stage of final judgment, and direct the
accused to cross examine the witness without prejudice to such
objections.
(q) If the objection is with regard to the mode of proof in respect of any
of the document/s (other than the documents which have presumptive
value in law) alleging the same to be irregular or insufficient the court
should allow the Complainant on his application made under
sub Section (2) of Section145, before his cross examination begins, to
lead further evidence by stepping into witness box to cure the defect and
adopt such mode as would be regular and sufficient. The cases where the
Complainant does not make application under section 145(2), the Court
should mark it for identification and defer the decision on such objection
to be decided at the stage of final judgment.
(r) If the accused desires to be a witness for the defence and if he makes
an application seeking such permission in writing to the Magistrate as
contemplated under Section 315 of the Code he may be allowed to
tender his evidence on affidavit. Once the accused is allowed to tender his
evidence on the affidavit it would be subject to all just exceptions and the
guidelines and the directions passed in this judgment.
..........................................................
1994(18)ACR256
IN THE HIGH COURT OF ALLAHABAD
Government Appeal No. 1548 of 1978
17
Decided On: 02.11.1993
Appellants: State of U.P.
Vs.
Respondent: Smt. Barphi and Ors.
Hon'ble Judges/Coram:
Giridhar Malaviya and A.B. Srivastava, JJ.
It has been contended by learned Counsel for accused Respondent, Shri K.C. Saxena that the report of the document expert and the photographs relied by him, not having been proved in accordance with law, the same is not admissible in evidence to arrive at a conclusion about the identity of the writer of the letters Exhibits 4, 5, 9 and 10 Reference in this regard may, however, be made to Sub- section (3) of Section 294 of the Code of Criminal Procedure which says that where the genuineness of any document is not disputed, such document may be read in evidence in any enquiry, trial or other proceeding under the code, without proof of signature of the person 10 whom it purports to be signed. Undisputedly, the genuineness of Exhibit Ka 17, the report with reasons of the expert, and the photo enlargement of the disputed and specimen writings, prepared and utilised by him, was admitted by the defence in the lower Court It is true that the documents were not filed by the prosecution with a list as required in Sub-section (1) of Section 294 Code of Criminal Procedure but, desirable thought it was that the filing should have been with a list of documents, its absence does not go to nullify the admission of genuineness made under Sub-section (3) ofSection 294 Code of Criminal Procedure. There was also not made out any case under the proviso to Section 294 to require the document expert to be examined in the Court to prove his report and other documents.