Gujarat High Court
Omprakash Ramswarupdas Agarwal vs State Of Gujarat & on 19 June, 2015
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/SCR.A/538/2015 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 538 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowedNO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy ofNO
the judgment ?
4 Whether this case involves a substantial question ofNO
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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OMPRAKASH RAMSWARUPDAS AGARWAL....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
ADITYA A GUPTA, ADVOCATE for the Applicant(s) No. 1
MR AR GUPTA, ADVOCATE for the Applicant(s) No. 1
MS.DIVYANGNA JHALA, ADVOCATE for the Respondent(s) No. 2
PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 19/06/2015
CAV JUDGMENT
1. By this application under Article 227 of the Constitution of India, the petitioneroriginal Page 1 of 25 1 of 50 R/SCR.A/538/2015 CAV JUDGMENT accused No.1 calls in question the legality and validity of the order dated 13th January 2015 passed by the learned Additional Chief Metropolitan Magistrate, Court No.9, Ahmedabad, in Criminal Case No.4818 of 1997 giving Exhibit No.17 to a family agreement produced by the respondent No.2original complainant in the course of his examination at the stage of recording of the precharge evidence.
2. The facts giving rise to this application may be summarized as under:
3. The respondent No.2original complainant lodged a private complaint in the Court of the learned Metropolitan Magistrate, Ahmedabad, against the applicant herein and one other person for the offence punishable under Sections 403, 406, 465, 409, 418, 420, 463, 464, 468, 471 and 475 of the Indian Penal Code.
4. The sum and substance of the complaint is that the accused persons fabricated a false document in a form of a family agreement, on a stamp paper of Rs.10/ purported to have been entered into on 16.09.1986 between the complainant and accused No.1 i.e. the applicant herein. By so acting in a fraudulent manner, the accused stated therein that M/s Kashiram Textile Page 2 of 25 2 of 50 R/SCR.A/538/2015 CAV JUDGMENT Mills Pvt. Ltd. situated at Ranipur (Narol), Ahmedabad, was a joint family property of the complainant and the accused No.1 and that the parties to the said agreement had decided to distribute the said property. Accordingly, the property stated in the agreement codme in the exclusive and independent possession of the applicant accused herein.
5. It appears that the learned Metropolitan Magistrate Court No.9 took cognizance upon the complaint and ordered issue of process against the accused. The recording of precharge evidence commenced. The complainant in his deposition, (Exhibit11), produced a xerox copy of the agreement dated 16.09.1986. He deposed that the forged agreement was produced by the accused persons before the Hon'ble High Court of Gujarat in a pollution related matter. The complainant deposed that he learnt about such a forged agreement and was able to procure the xerox copy of the same. He further deposed that the xerox copy of the said agreement was supplied to him by the Section Officer of the High Court along with a official letter Exhibit4. He deposed that the signature of his father on the said agreement was forged. He also deposed that the opinion of the handwriting expert was obtained and the hand writing expert, in his report, opined that the Page 3 of 25 3 of 50 R/SCR.A/538/2015 CAV JUDGMENT signature of the father of the complainant was forged.
6. The trial Court permitted production of the xerox copy of the agreement and exhibited the same by giving Exhibit16.
7. The decision of the trial Court to Exhibit such a document being a xerox copy was objected to by the accused. However, such objection came to be overruled by the trial Court.
8. Being dissatisfied with the order of the trial Court exhibiting the xerox copy of the document, the applicantoriginal accused has came up with this application.
9. Mr. A.R. Gupta, the learned advocate appearing for the applicant vehemently submitted that the trial Court committed a serious error in exhibiting the document by giving Exhibit17 to the same. He submitted that the accused had not put any question pertaining to the family agreement dated 16.09.1986 but had only asked the date of the agreement as the complainant himself had referred to a family settlement agreement during the crossexamination.
10. Mr. Gupta, the learned advocate appearing for Page 4 of 25 4 of 50 R/SCR.A/538/2015 CAV JUDGMENT the applicant, submitted that at the stage of precharge evidence recorded u/s 244 of the Code, the prosecution has to prima facie establish the commission of an offence by the accused in order to frame an appropriate charge and the Court ought not to have exhibited the xerox copy of the family agreement.
11. Mr. Gupta submitted that his client had raised a serious objection for Exhibiting the xerox copy of the agreement. However, such objection was wrongly overruled. He submits that the decision of the trial Court to exhibit the document may be quashed.
12. This application has been vehemently opposed by Ms. Divyangna Jhala, the learned advocate appearing for the respondent No.2original complainant. Ms. Jhala submitted that no error, not to speak of any error of law, could be said to have been committed by the trial Court in giving exhibit to the document. Ms. Jhala submitted that the original document is in the custody of the High Court. The said document was in fact produced by the accused before the High Court in one pollution matter.
13. Ms. Jhala submitted that her client had applied for the copy of the said document by Page 5 of 25 5 of 50 R/SCR.A/538/2015 CAV JUDGMENT filing an appropriate application before the Registrar of the High Court. She submitted that, thereafter, the copy of the document was provided to her client by the registry of the High Court and that is how the xerox copy of the document was produced in the course of the recording of the precharge evidence. She submits that there being no merit in this application, the same be rejected.
14. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for my consideration is, whether the Court below committed any error in exhibiting the document.
15. It appears from the materials on record that one Shri Dilipbhai Maganlal Makwana, serving as a Deputy Section Officer with the High Court of Gujarat was examined and he stated before the Court that he had been serving as a Deputy Section Officer in the High Court past 26 years. He further submitted that a litigation was going on between the complainant and the accused before the High Court in the form of a Miscellaneous Civil Application No.1167 of 1996. He submitted that pursuant to the witness summons issued by the Court he had appeared before the trial Court Page 6 of 25 6 of 50 R/SCR.A/538/2015 CAV JUDGMENT with the copy of the document which was under the nomenclature of a family agreement. He further submitted that the said document was produced by the accused along with the Miscellaneous Civil Application referred to above.
16. There is one letter addressed by the Deputy Section Officer, Decree Department, High Court of Gujarat, Ahmedabad, to the learned Metropolitan Magistrate, Court No.9, which is on record. The same reads as under: "To The Hon'ble Metropolitan Magistrate, Court No.9 Metropolitan Magistrate Court, Ahmedabad.
Subject : Regarding producing of Family Agreement Document between Mr. Omprakash Agrawal & Mr. Jagdishprasad Agrawal....
Respected Sir, I undersigned the Dy. Section Officer working in the decree Department, High Court of Gujarat, A'bad, I have been directed by our Dy. Registrar to attend the Hon'ble Court in connection with the producing of the document by witness summons issued in the said case by the Hon'ble Court.
In this connection, I respectfully submit that, as per the directions issued to me I am producing the simple photocopy of the document which was produced before the Hon'ble High Court of Gujarat in the Misc. Civil Application No.1167/1996. The M.C.A. 1167/1996 is disposed off on 02/11/1998.
As I have been directed to produce the copy of the said document, I am producing the copy of the said document before the Hon'ble Court.
Page 7 of 25 7 of 50 R/SCR.A/538/2015 CAV JUDGMENT Date : 4/10/2008 (D.M.MAKWANA) Dy. Section Officer, DECREE DEPARTMENT, HIGH COURT OF GUJARAT, AHMEDABAD"
17. The complainant has also filed an affidavit inreply to this application interalia stating as under: "4. I humbly submit that the accused are the author of the forged document as they had presented the same in the High Court during the proceedings of Civil Application No.1167 of 1996 in MCA No.1863/95 with MCA 1963/95 in Civil Application No.770 of 1995 which a Public Interest Litigation involving a serious question of violation of Environmental laws hence, the only access I, Respondent No.2 have is the copy of the alleged forged document as the presumption clearly weighs itself towards the petitioners having the original copy of the said forged family agreement. Therefore, the foundation of absence of a primary evidence has beenlaid by me, Respondent No.2.
(d) It is respectfully submitted that in the deposition of one Mr. Dilipbhai Maganlal Makwana, the Deputy Section Officer of the High Court of Gujarat dated 4/10/2008 and that as a witness summons was issued he had got along the documents which were sought in the witness summons. The witness therefore produced a copy of the family agreement which was witness therefore produced a copy of the family agreement which was produced before the Hon'ble High Court of Gujarat in MCA No.1167/96. The same was exhibited as a part of Exhibit4 during the chief examination of this witness. That this was the only way that this family agreement could be brought on record as the original copy of the forged document was obviously retained by the accused. Hence, only if this Hon'ble Court calls upon the accused to produce the original family agreement only then the original copy of the family agreement could be procured. Certified copy of the deposition of this witness has been annexed hereto and marked as ANNEXURER1 to this reply. Certified copy of the documents produced by the witness being family agreement has been annexed hereto and marked as ANNEXURER2 to this reply.
It is respectfully submitted that I, Respondent No.2 Page 8 of 25 8 of 50 R/SCR.A/538/2015 CAV JUDGMENT was examined on 23/12/2013 wherein in my chief examination was conducted and the chief examination got continued on the dated being 13/1/2015. That on 13/1/2015 the crossexamination of Respondent No.2 was conducted wherein a categorical question was put forth by the advocate of the petitioner with regards to the date of the family agreement to which I, Respondent No.2 replied that the family agreement was that of 86 after which an adjournment application was made by the petitioner for further crossexamination which was granted by the Ld. Magistrate. Hence, the reference of the family agreement was made by the present petitioner categorically asking about the date of family agreement while referring the document. The Ld. Magistrate therefore, at the same moment observed the reference and exhibited the said agreement. That the Ld. Magistrate has committed no wrong by Exhibiting the said document as merely giving Exhibit to a document does not hold the document to be proved as Exhibits are given as an identification to a document. Moreover, in the examination in chief I, Respondent No.2 have denied that the signature on the family agreement was not that of my father hence, even if it is believed that the document is proved by giving it an Exhibit then my father is dead and I being the complainant now have denied the signatures of my father. The deposition of mine, Respondent No.2 has been annexed as ANNEXUREB to the petition of the petitioner. Certified copy of family agreement now marked as 'ENNEXURER3'.
7. That I most humbly submit that the application objecting the mark 'Exhibit16' given to the document being family agreement is merely a part of an afterthought in order to delay the proceedings of the Ld. Magistrate.
8. I very respectfully state that in view of the aforesaid and the allegations made in the Criminal Complaint No. 4818 of 1997 it is humbly prayed that the adinterim relief as granted by this Hon'ble Court be vacated in the interest of justice."
18. The Supreme Court, in the case of Kalia V. State of M.P., (2013) 10 SCC 758 has explained in details regarding the permissibility to adduce secondary evidence relating to a document. I may quote the observations made by the Supreme Court, Page 9 of 25 9 of 50 R/SCR.A/538/2015 CAV JUDGMENT in paragraph Nos. 13 and 14, reads as under: "13. Section 65(c) of the Act 1872 provides that secondary evidence can be adduced relating to a document when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason, not arising from his own default, or neglect, produce it in reasonable time. The court is obliged to examine the probative value of documents produced in court or their contents and decide the question of admissibility of a document in secondary evidence. (Vide: H. Siddiqui (dead) by Lrs. v. A. Ramalingam, AIR 2011 SC 1492; and Rasiklal Manikchand Dhariwal & Anr. v. M.S.S. Food Products, (2012) 2 SCC 196). However, the secondary evidence of an ordinary document is admissible only and only when the party desirous of admitting it has proved before the court that it was not in his possession or control of it and further, that he has done what could be done to procure the production of it. Thus, the party has to account for the nonproduction in one of the ways indicated in the section. The party further has to lay down the factual foundation to establish the right to give secondary evidence where the original document cannot be produced. When the party gives in evidence a certified copy/secondary evidence without proving the circumstances entitling him to give secondary evidence, the opposite party must raise an objection at the time of admission. In case, an objection is not raised at that point of time, it is precluded from being raised at a belated stage. Further, mere admission of a document in evidence does not amount to its proof. Nor, mere marking of exhibit on a document does not dispense with its proof, which is otherwise required to be done in accordance with law. (Vide: The Roman Catholic Mission v. The State of Madras, AIR 1966 SC 1457; Marwari Khumhar & Ors. v. Bhagwanpuri Guru Ganeshpuri & Anr., AIR 2000 SC 2629; R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami and V.P. Temple & Anr., AIR 2003 SC 4548; Smt. Dayamathi Bai v. K.M. Shaffi, AIR 2004 SC 4082; and Life Insurance Corporation of India & Anr. v. Rampal Singh Bisen, (2010) 4 SCC 491).
14. In M. Chandra v. M. Thangamuthu & Anr., (2010) 9 SCC 712, this Court considered this aspect in detail and held as under:
Page 10 of 2510 of 50 R/SCR.A/538/2015 CAV JUDGMENT "We do not agree with the reasoning of the High Court. It is true that a party who wishes to rely upon the contents of a document must adduce primary evidence of the contents, and only in the exceptional cases will secondary evidence be admissible.
However, if secondary evidence is admissible, it may be adduced in any form in which it may be available, whether by production of a copy, duplicate copy of a copy, by oral evidence of the contents or in another form. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. It should be emphasised that the exceptions to the rule requiring primary evidence are designed to provide relief in a case where a party is genuinely unable to produce the original through no fault of that party." A similar view has been reiterated in J. Yashoda v. K. Shobha Rani, AIR 2007 SC 1721."
19. The Supreme Court, in the case of R.V.E. Venkatachala Gounder V. Arulmigu Viswesaraswami & V.P. Temple and another, (2003) 8 SCC 752, made the following observations in paragraph No.20: "The learned counsel for the defendantrespondent has relied on The Roman Catholic Mission Vs. The State of Madras & Anr. AIR 1966 SC 1457 in support of his submission that a document not admissible in evidence, though brought on record, has to be excluded from consideration. We do not have any dispute with the proposition of law so laid down in the abovesaid case. However, the present one is a case which calls for the correct position of law being made precise. Ordinarily an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in evidence may be classified into two classes: (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as 'an exhibit', an objection as to its admissibility is not excluded and Page 11 of 25 11 of 50 R/SCR.A/538/2015 CAV JUDGMENT is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken before the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The later proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the Court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the Court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the Court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the later case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in superior Court."
20. The Supreme Court, in the case of Ranvir Singh and another V. Union of India, AIR 2005 SC, 3467, observed in paragraph No.26 as under: "26.Contention of Mr. Nariman that the Xerox copies of the deeds of sale produced by the parties were not admissible in evidence in terms of Section 51A of the Land Acquisition Act is stated to be rejected. The provisions of the Indian Evidence Act postulate that Page 12 of 25 12 of 50 R/SCR.A/538/2015 CAV JUDGMENT secondary evidence can be led by the parties in the event primary evidence is not available. In a case of this nature, however, the claimantrespondents may be aware of the transactions. Indisputably, they did not raise any objection as regard admissibility of the said deeds of sale.The xerox copy of the deeds of sale were marked exhibits without any objection having been taken by the Respondents herein. Such an objection cannot, therefore, be taken for the first time before this Court.[See R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami and V.P. Temple and Another, (2003) 8 SCC 752 and Dayamathi Bai (Smt.) v. K.M. Shaffi, (2004) 7 SCC 107]. What would be their evidentiary value may ultimately fall for consideration by the Court but the said deeds of sale cannot be rejected only on the ground that only Xerox copies thereof had been brought on records. The onus to prove the market value as obtaining on the date of notification was on the claimants. It was for them to adduce evidence to prove their claims by bringing sufficient and cogent materials on record so as to enable the court to determine the market value of the acquired land as on the date of issuance of notification under Section 4 of the Land Acquisition Act. If the claimants themselves filed Xerox copies of the deeds of sale or failed to examine any witness to prove the relevant factors for determining the market value of the land acquired with reference to the said sale instances, they cannot now be permitted to resile therefrom and contend that the said documents should be totally ignored."
21. Mr. Gupta, the learned advocate appearing for the petitioner, placed reliance on the decision of the Supreme Court in the case of Sunil Mehta and another V. State of Gujarat, (2013) 9SCC 209, wherein the Court made the following observations in paragraph Nos. 12, 13, 14, 15, 16, 17: "12. Sections 244 to 246 leave no manner of doubt that once the accused appears or is brought before the Magistrate the prosecution has to be heard and all such evidence as is brought in support of its case recorded. The power to discharge is also under Section 245 exercisable only upon taking all of the evidence that is referred to in Section 244, so also the power to frame charges in terms of Section 246 has to be exercised on the basis of the Page 13 of 25 13 of 50 R/SCR.A/538/2015 CAV JUDGMENT evidence recorded under Section 244. The expression "when such evidence has been taken"
appearing in Section 246 is significant and refers to the evidence that the prosecution is required to produce in terms of Section 244(1) of the Code. There is nothing either in the provisions of Sections 244, 245 and 246 or any other provision of the Code for that matter to even remotely suggest that evidence which the Magistrate may have recorded at the stage of taking of cognizance and issuing of process against the accused under Chapter XV tantamounts to evidence that can be used by the Magistrate for purposes of framing of charges against the accused persons under Section 246 thereof without the same being produced under Section 244 of the Code. The scheme of the two Chapters is totally different. While Chapter XV deals with the filing of complaints, examination of the complainant and the witnesses and taking of cognizance on the basis thereof with or without investigation and inquiry, Chapter XIX Part B deals with trial of warrant cases instituted otherwise than on a police report. The trial of an accused under Chapter XIX and the evidence relevant to the same has no nexus proximate or otherwise with the evidence adduced at the initial stage where the Magistrate records depositions and examines the evidence for purposes of deciding whether a case for proceeding further has been made out. All that may be said is that evidence that was adduced before a Magistrate at the stage of taking cognizance and summoning of the accused may often be the same as is adduced before the Court once the accused appears pursuant to the summons. There is, however, a qualitative difference between the approach that the Court adopts and the evidence adduced at the stage of taking cognizance and summoning the accused and that recorded at the trial. The difference lies in the fact that while the former is a process that is conducted in the absence of the accused, the latter is undertaken in his presence with an opportunity to him to crossexamine the witnesses produced by the prosecution.
13. Mr. U.U. Lalit, learned senior counsel appearing for the respondent complainant strenuously argued that Section 244 does not envisage, leave alone provide for in specific terms, crossexamination of witnesses produced by the prosecution by the accused. He submitted that since the provision of Section 244 did not recognise any such right of an accused before framing of charges, it did not make any difference whether the Page 14 of 25 14 of 50 R/SCR.A/538/2015 CAV JUDGMENT Court was evaluating evidence adduced at the stage of cognizance and summoning of the accused or that adduced after he had appeared before the Magistrate under Section 244. He particularly drew our attention to subsection (4) to Section 246 which requires the Magistrate to ask the accused whether he wishes to crossexamine any, and if so, which of the witnesses for the prosecution whose evidence has been taken. It was contended by Mr. Lalit that the provision of subsection (4) to Section 246 provides for cross examination by the accused only after charges have been framed and not before.
14. There is, in our opinion, no merit in that contention which needs to be noticed only to be rejected. We say so for reasons more than one. In the first place, the expression "Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution" appearing in Section 244 refers to evidence within the meaning of Section 3 of the Indian Evidence Act, 1872. Section 3 reads as under:
3. Interpretation clause In this Act the following words and expressions are used in the following senses, unless a contrary intention appears from the context:--
"Evidence".--"Evidence" means and includes--
1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry, such statements are called oral evidence;
2) all documents including electronic records produced for the inspection of the Court, such documents are called documentary evidence."
15. We may also refer to Chapter X of the Evidence Act which deals with examination of witnesses. Section 137 appearing in that Chapter defines the expressions examinationinchief, cross and re examination while Section 138 stipulates the order of examinations and reads as under:
"138. Order of examinations. Witnesses shall be first examinedinchief, then (if the adverse party Page 15 of 25 15 of 50 R/SCR.A/538/2015 CAV JUDGMENT so desires) crossexamined, then (if the party calling him so desires) reexamined.
The examination and crossexamination must relate to relevant facts, but the crossexamination need not be confined to the facts to which the witness testified on his examinationinchief.
Direction of reexamination. The reexamination shall be directed to the explanation of matters referred to in crossexamination; and, if new matter is, by permission of the Court, ntroduced in reexamination, the adverse party may further crossexamine upon that matter."
16. It is trite that evidence within the meaning of the Evidence Act and so also within the meaning of Section 244 of the Cr.P.C. is what is recorded in the manner stipulated under Section 138 in the case of oral evidence. Documentary evidence would similarly be evidence only if the documents are proved in the manner recognised and provided for under the Evidence Act unless of course a statutory provision makes the document admissible as evidence without any formal proof thereof.
17. Suffice it to say that evidence referred to in Sections 244, 245 and 246 must, on a plain reading of the said provisions and the provisions of the Evidence Act, be admissible only if the same is produced and, in the case of documents, proved in accordance with the procedure established under the Evidence Act which includes the rights of the parties against whom this evidence is produced to crossexamine the witnesses concerned"
22. The Supreme Court, in the case of Bipin Shantilal Panchal V. State of Gujarat reported in 2001 (2) G.L.H. 545 has dealt with the issue in hand at length. The observations made by the Supreme Court in paragraphs Nos.12 to 16 are as under: "12. As pointed out earlier, on different occasions the trial Judge has chosen to decide question of admissibility of documents or other items of evidence, as and when objections thereto were raised Page 16 of 25 16 of 50 R/SCR.A/538/2015 CAV JUDGMENT 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, when the same question is recanvassed, 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 remoulded 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 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 Page 17 of 25 17 of 50 R/SCR.A/538/2015 CAV JUDGMENT 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 recanvassed 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."
23. What is discernible from the decisions of the Supreme Court referred to above is that the objection as to the admissibility of secondary evidence relating to a document can be raised even after the document has been marked as "an exhibit" or even in revision if the document sought to be proved is itself inadmissible. If the objection is directed not against the admissibility of the document but against the mode of proof thereof on the ground of irregularity or insufficiency etc. such objection is not entertainable if the document has been exhibited without any objection from the other side. The objection of the applicant herein is only as to the mode of proof of the said document but not to the admissibility of the said document.
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24. The principle of law as explained by the Supreme Court in the Case of Sunil Mehta (supra) is that evidence within the meaning of Section 244 Cr.P.C. is what is recorded in the manner stipulated under Section 138 of the Evidence Act in the case of oral evidence and the documentary evidence would similarly be evidence only if the documents are proved in the manner recognized and provided for under the Evidence Act. In short, the evidence referred to in Sections 244, 245 and 246 Cr.P.C. must be admissible only if the same is produced and, in the case of documents, proved in accordance with the procedure established under the Evidence Act. The decision of the Supreme Court in the case of Sunil Mehta (supra) has been relied upon to fortify the submission that once the document in question is held to be inadmissible then no case is made out for the purpose of framing charge against the accused.
25. Any document filed by either party passes through three stages before it is held proved or disproved. There are:
First stage: when the documents are filed by either party in the Court; these documents though on file, do not become part of the judicial Page 19 of 25 19 of 50 R/SCR.A/538/2015 CAV JUDGMENT record;
Second Stage: When the documents are tendered or produced in evidence by a party and the Court admits the documents in evidence. A document admitted in evidence becomes a part of the judicial record of the case and constitutes evidence;
Third Stage: the documents which are held 'proved not proved or disproved' when the Court is called upon to apply its judicial mind by reference to Section 3 of the Evidence Act.
26. In the present case, the secondary evidence in the form of a xerox copy of the document, could not be said to have been adduced without laying foundation for its admissibility. A responsible officer of the High Court has also been examined as a witness. He has deposed about the document in clear terms.
27. Even otherwise, the mere admission of a document in evidence does not amount to its proof.
28. When the Court is called upon to examine the admissibility of a document it concentrates only the document. When called upon to form a judicial opinion whether a document has been proved, disproved or not proved the Court would look not Page 20 of 25 20 of 50 R/SCR.A/538/2015 CAV JUDGMENT at the document alone or only at the statement of the witness standing in the box; it would take into consideration probabilities of the case as emerging from the whole record. It could not have been intendment of any law, rule or practice direction to expect the Court applying its judicial mind to the entire record of the case, each time a document was placed before it for being exhibited and from an opinion if it was proved before marking it as an exhibit.
29. The marking of a document as an exhibit, be it in any manner whatsoever either by use of alphabets or by use of numbers, is only for the purpose of identification. While reading the record the parties and the Court should be able to know which was the document before the witness when it was deposing. Absence of putting an endorsement for the purpose of identification no sooner a document is placed before a witness would cause serious confusion as one would be left simply guessing or wondering while was the document to which the witness was refering to which deposing. Endorsement of an exhibit number on a document has no relation with its proof. Neither the marking of an exhibit number can be postponed till the document has been held proved; nor the document can be held to have been proved Page 21 of 25 21 of 50 R/SCR.A/538/2015 CAV JUDGMENT merely because it has been marked as an exhibit.
30. I may also quote with profit a decision of this Court in the case of State of Gujarat V. Gaurang Mathurbhai Leava reported in 1999 (2) G.L.H. 564. The observations made in paragraph Nos. 5, 6, 7 and 8 are as under: "5. When the court finds that a particular document tendered in evidence by the witness is duly proved in accordance with the provisions of the Evidence Act or the provisions of other Statutes applicable, the Court may exhibit the same so that the same can be considered while disposing of the matter finally. About the meaning of the word "exhibit", a question arose before the Calcutta High Court in the case of Rakhaldas Pramanick v. Sm. Shantilata Ghose and others AIR 1956 Calcutta 619 wherein it is made clear that "Exhibit" means a document exhibited for the purpose of being taken into consideration in deciding some question or other in respect of the proceeding in which it is filed. Let me therefore make it clear that the document when it is exhibited, the Court, while exhibiting the same does not finally decide the rights of the parties, or form any opinion, or express any opinion on the document or on the point that arises for consideration. In short, no legal complexion is given to the issues that arise for consideration. After the hearing is over, while finally adjudicating, the Court is free to discard a particular document holding that it was not duly proved or holding that the document was partly proved namely, execution alone thereof was proved, but as the contents thereof were not proved, the same cannot be taken into account. If either of the parties later on files during the course of the hearing an application to expunge the document admitted in record, the court may hearing the parties expunge the same if it finds that the document is not legally and correctly proved & exhibited. In short, by exhibiting the document merits or demerits thereof are not dissected, and the rights and obligations of the parties are not finally decided, or legal complexion is not given to the issue that arises for consideration as giving exhibit to the document is the procedural aspect of the matter and it merely shows that document is formally proved. The rights & obligations of the parties are to be decided while finally appreciating the evidence for the purpose of Page 22 of 25 22 of 50 R/SCR.A/538/2015 CAV JUDGMENT pronouncing final verdict. In view of the matter, the order passed, admitting the letters and greeting cards, in evidence can be said to be the interlocutory order.
6. Some of the decisions on the point in support of my such view may be referred to. In the case of Indra Nath Guha v. State of West Bengal 1979 Cri. L.J. NOC 129 (CAL.),when likewise question was raised with regards to the admissibility of the oral evidence, it is held that the order concerning the admissibility of oral evidence is an interlocutory order and not the final order. This decision can mutatis mutandis be made applicable to the documentary evidence also. The Allahabad High Court in the case of Bhaiyalal v. Ram Din AIR 1989 Allahabad 130 has held that by mere fact the document is exhibited, it does not follow that the Court stands precluded from examining the question on the basis of evidence led by the parties whether the document in question was exempted by the party by which it purports to have been executed. The fact that document is exhibited, it merely establishes that it has been formally proved. But where the execution of the document is challenged, the court of fact is clearly entitled to weigh the evidence led by the parties and decide whether the document was really executed by the party alleged to have executed the same. In Manohar Nath Sher v. State of J. & K. 1980 CRI. L.J. 292, it is held that order allowing or disallowing the production of the document does not put an end to proceedings in which the order is made. Such an order is only a step in the proceeding and it relates to a procedural matter and does not purport to decide the rights of the parties. Such an order is the interlocutory order and revision against the same is not maintainable. The High Court of Lahore in Robert Cameron Chamarette v. Mrs. Phyllis Ethel Chamarette A.I.R. 1937 Lahore 176 has held that admissibility of a particular evidence is the interlocutory order which can subsequently be held to be inadmissible though ofcourse it is not so done often. All these decisions abundantly make it clear that the document if exhibited by the Court passing the order, the order which is passed would be the interlocutory order and not the final order determining the rights and liabilities of the parties finally because subsequently either of the parties can question the genuineness of the document and in that case it is open to the Court to accept or discard the document having due regards to the facts and circumstances on record. This revision application against the order in question is, therefore, in view of Section 397(2) of the Criminal Procedure Code is not maintainable, Page 23 of 25 23 of 50 R/SCR.A/538/2015 CAV JUDGMENT as the order in question is the interlocutory order.
7. It is contended by the learned APP, that the document can be exhibited only after the other side crossexamines the witness, or reexamines the witness as the case may be. The document ought not to have been exhibited as prosecution was not given the chance to Reexamine putting the question which can be put in crossexamination. The contention does not gain a ground to stand upon. Neither any procedural law nor any provision of the Evidence Act mandates to exhibit the document only after the other side assails, either in the crossexamination or in the reexamination, the statements made by the witness qua the proof of the document and the Court is satisfied about the reliability of the evidence in that regard. Whatever may be the stage of the examination, if the document is found to have been duly proved because of necessary statements regarding proof thereof having been made by the witness, the Court may exhibit and admit the same in evidence apart from the question of its appreciation later on, or challenge to be made by the other side which has been sought to be done in the present case. The contention therefore must fail. It may be mentioned that the right of the prosecution to assail the exhibition of the document is not curtailed or taken away by such observation.
8. As per Sec. 67 of the Indian Evidence Act a document is required to be proved in the manner provided by Sec. 45, 47 or 73 of that Act or by internal proof afforded by its own contents. Sec. 47 provides different methods of proving the handwriting of a person. Under Sec. 67 if a document is signed by a person or written wholly or in part by any person, the signature of that person or handwriting of that person must be proved to be in his handwriting. If Sections 47 and 67 of the Evidence Act are read together, what can reasonably be deduced is that the signature of a person on a document can be proved either by examining the person in whose presence the signature was affixed, or else by examining another person who is acquainted with the handwriting of the executant of the document, or the person alleged to have written the document and is able to prove his signature by his opinion. When Sections 45 & 47 of the Evidence Act are read together, what can be deduced is that for proving the handwriting and signature the opinion of the expert and of the persons acquainted with the handwriting of that person are relevant."
Page 24 of 2524 of 50 R/SCR.A/538/2015 CAV JUDGMENT
31. In the aforesaid view of the matter, I do not find any good reason to interfere with the impugned order or decision of the trial Court in exercise of my supervisory jurisdiction under Article 227 of the Constitution of India.
32. In the result, this application fails and is hereby rejected. Interim relief granted earlier stands vacated forthwith.
(J.B.PARDIWALA, J.) Manoj Page 25 of 25 25 of 50 R/SCR.A/538/2015 CAV JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 538 of 2015 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================================== 1 Whether Reporters of Local Papers may be allowedNO to see the judgment ?
2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy ofNO the judgment ?
4 Whether this case involves a substantial question ofNO law as to the interpretation of the Constitution of India or any order made thereunder ?
========================================================== OMPRAKASH RAMSWARUPDAS AGARWAL....Applicant(s) Versus STATE OF GUJARAT & 1....Respondent(s) ========================================================== Appearance:
ADITYA A GUPTA, ADVOCATE for the Applicant(s) No. 1 MR AR GUPTA, ADVOCATE for the Applicant(s) No. 1 MS.DIVYANGNA JHALA, ADVOCATE for the Respondent(s) No. 2 PUBLIC PROSECUTOR for the Respondent(s) No. 1 ========================================================== CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 19/06/2015 CAV JUDGMENT
1. By this application under Article 227 of the Constitution of India, the petitioneroriginal Page 1 of 25
26 of 50 R/SCR.A/538/2015 CAV JUDGMENT accused No.1 calls in question the legality and validity of the order dated 13th January 2015 passed by the learned Additional Chief Metropolitan Magistrate, Court No.9, Ahmedabad, in Criminal Case No.4818 of 1997 giving Exhibit No.17 to a family agreement produced by the respondent No.2original complainant in the course of his examination at the stage of recording of the precharge evidence.
2. The facts giving rise to this application may be summarized as under:
3. The respondent No.2original complainant lodged a private complaint in the Court of the learned Metropolitan Magistrate, Ahmedabad, against the applicant herein and one other person for the offence punishable under Sections 403, 406, 465, 409, 418, 420, 463, 464, 468, 471 and 475 of the Indian Penal Code.
4. The sum and substance of the complaint is that the accused persons fabricated a false document in a form of a family agreement, on a stamp paper of Rs.10/ purported to have been entered into on 16.09.1986 between the complainant and accused No.1 i.e. the applicant herein. By so acting in a fraudulent manner, the accused stated therein that M/s Kashiram Textile Page 2 of 25 27 of 50 R/SCR.A/538/2015 CAV JUDGMENT Mills Pvt. Ltd. situated at Ranipur (Narol), Ahmedabad, was a joint family property of the complainant and the accused No.1 and that the parties to the said agreement had decided to distribute the said property. Accordingly, the property stated in the agreement codme in the exclusive and independent possession of the applicant accused herein.
5. It appears that the learned Metropolitan Magistrate Court No.9 took cognizance upon the complaint and ordered issue of process against the accused. The recording of precharge evidence commenced. The complainant in his deposition, (Exhibit11), produced a xerox copy of the agreement dated 16.09.1986. He deposed that the forged agreement was produced by the accused persons before the Hon'ble High Court of Gujarat in a pollution related matter. The complainant deposed that he learnt about such a forged agreement and was able to procure the xerox copy of the same. He further deposed that the xerox copy of the said agreement was supplied to him by the Section Officer of the High Court along with a official letter Exhibit4. He deposed that the signature of his father on the said agreement was forged. He also deposed that the opinion of the handwriting expert was obtained and the hand writing expert, in his report, opined that the Page 3 of 25 28 of 50 R/SCR.A/538/2015 CAV JUDGMENT signature of the father of the complainant was forged.
6. The trial Court permitted production of the xerox copy of the agreement and exhibited the same by giving Exhibit16.
7. The decision of the trial Court to Exhibit such a document being a xerox copy was objected to by the accused. However, such objection came to be overruled by the trial Court.
8. Being dissatisfied with the order of the trial Court exhibiting the xerox copy of the document, the applicantoriginal accused has came up with this application.
9. Mr. A.R. Gupta, the learned advocate appearing for the applicant vehemently submitted that the trial Court committed a serious error in exhibiting the document by giving Exhibit17 to the same. He submitted that the accused had not put any question pertaining to the family agreement dated 16.09.1986 but had only asked the date of the agreement as the complainant himself had referred to a family settlement agreement during the crossexamination.
10. Mr. Gupta, the learned advocate appearing for Page 4 of 25 29 of 50 R/SCR.A/538/2015 CAV JUDGMENT the applicant, submitted that at the stage of precharge evidence recorded u/s 244 of the Code, the prosecution has to prima facie establish the commission of an offence by the accused in order to frame an appropriate charge and the Court ought not to have exhibited the xerox copy of the family agreement.
11. Mr. Gupta submitted that his client had raised a serious objection for Exhibiting the xerox copy of the agreement. However, such objection was wrongly overruled. He submits that the decision of the trial Court to exhibit the document may be quashed.
12. This application has been vehemently opposed by Ms. Divyangna Jhala, the learned advocate appearing for the respondent No.2original complainant. Ms. Jhala submitted that no error, not to speak of any error of law, could be said to have been committed by the trial Court in giving exhibit to the document. Ms. Jhala submitted that the original document is in the custody of the High Court. The said document was in fact produced by the accused before the High Court in one pollution matter.
13. Ms. Jhala submitted that her client had applied for the copy of the said document by Page 5 of 25 30 of 50 R/SCR.A/538/2015 CAV JUDGMENT filing an appropriate application before the Registrar of the High Court. She submitted that, thereafter, the copy of the document was provided to her client by the registry of the High Court and that is how the xerox copy of the document was produced in the course of the recording of the precharge evidence. She submits that there being no merit in this application, the same be rejected.
14. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for my consideration is, whether the Court below committed any error in exhibiting the document.
15. It appears from the materials on record that one Shri Dilipbhai Maganlal Makwana, serving as a Deputy Section Officer with the High Court of Gujarat was examined and he stated before the Court that he had been serving as a Deputy Section Officer in the High Court past 26 years. He further submitted that a litigation was going on between the complainant and the accused before the High Court in the form of a Miscellaneous Civil Application No.1167 of 1996. He submitted that pursuant to the witness summons issued by the Court he had appeared before the trial Court Page 6 of 25 31 of 50 R/SCR.A/538/2015 CAV JUDGMENT with the copy of the document which was under the nomenclature of a family agreement. He further submitted that the said document was produced by the accused along with the Miscellaneous Civil Application referred to above.
16. There is one letter addressed by the Deputy Section Officer, Decree Department, High Court of Gujarat, Ahmedabad, to the learned Metropolitan Magistrate, Court No.9, which is on record. The same reads as under: "To The Hon'ble Metropolitan Magistrate, Court No.9 Metropolitan Magistrate Court, Ahmedabad.
Subject : Regarding producing of Family Agreement Document between Mr. Omprakash Agrawal & Mr. Jagdishprasad Agrawal....
Respected Sir, I undersigned the Dy. Section Officer working in the decree Department, High Court of Gujarat, A'bad, I have been directed by our Dy. Registrar to attend the Hon'ble Court in connection with the producing of the document by witness summons issued in the said case by the Hon'ble Court.
In this connection, I respectfully submit that, as per the directions issued to me I am producing the simple photocopy of the document which was produced before the Hon'ble High Court of Gujarat in the Misc. Civil Application No.1167/1996. The M.C.A. 1167/1996 is disposed off on 02/11/1998.
As I have been directed to produce the copy of the said document, I am producing the copy of the said document before the Hon'ble Court.
Page 7 of 25 32 of 50 R/SCR.A/538/2015 CAV JUDGMENT Date : 4/10/2008 (D.M.MAKWANA) Dy. Section Officer, DECREE DEPARTMENT, HIGH COURT OF GUJARAT, AHMEDABAD"
17. The complainant has also filed an affidavit inreply to this application interalia stating as under: "4. I humbly submit that the accused are the author of the forged document as they had presented the same in the High Court during the proceedings of Civil Application No.1167 of 1996 in MCA No.1863/95 with MCA 1963/95 in Civil Application No.770 of 1995 which a Public Interest Litigation involving a serious question of violation of Environmental laws hence, the only access I, Respondent No.2 have is the copy of the alleged forged document as the presumption clearly weighs itself towards the petitioners having the original copy of the said forged family agreement. Therefore, the foundation of absence of a primary evidence has beenlaid by me, Respondent No.2.
(d) It is respectfully submitted that in the deposition of one Mr. Dilipbhai Maganlal Makwana, the Deputy Section Officer of the High Court of Gujarat dated 4/10/2008 and that as a witness summons was issued he had got along the documents which were sought in the witness summons. The witness therefore produced a copy of the family agreement which was witness therefore produced a copy of the family agreement which was produced before the Hon'ble High Court of Gujarat in MCA No.1167/96. The same was exhibited as a part of Exhibit4 during the chief examination of this witness. That this was the only way that this family agreement could be brought on record as the original copy of the forged document was obviously retained by the accused. Hence, only if this Hon'ble Court calls upon the accused to produce the original family agreement only then the original copy of the family agreement could be procured. Certified copy of the deposition of this witness has been annexed hereto and marked as ANNEXURER1 to this reply. Certified copy of the documents produced by the witness being family agreement has been annexed hereto and marked as ANNEXURER2 to this reply.
It is respectfully submitted that I, Respondent No.2 Page 8 of 25 33 of 50 R/SCR.A/538/2015 CAV JUDGMENT was examined on 23/12/2013 wherein in my chief examination was conducted and the chief examination got continued on the dated being 13/1/2015. That on 13/1/2015 the crossexamination of Respondent No.2 was conducted wherein a categorical question was put forth by the advocate of the petitioner with regards to the date of the family agreement to which I, Respondent No.2 replied that the family agreement was that of 86 after which an adjournment application was made by the petitioner for further crossexamination which was granted by the Ld. Magistrate. Hence, the reference of the family agreement was made by the present petitioner categorically asking about the date of family agreement while referring the document. The Ld. Magistrate therefore, at the same moment observed the reference and exhibited the said agreement. That the Ld. Magistrate has committed no wrong by Exhibiting the said document as merely giving Exhibit to a document does not hold the document to be proved as Exhibits are given as an identification to a document. Moreover, in the examination in chief I, Respondent No.2 have denied that the signature on the family agreement was not that of my father hence, even if it is believed that the document is proved by giving it an Exhibit then my father is dead and I being the complainant now have denied the signatures of my father. The deposition of mine, Respondent No.2 has been annexed as ANNEXUREB to the petition of the petitioner. Certified copy of family agreement now marked as 'ENNEXURER3'.
7. That I most humbly submit that the application objecting the mark 'Exhibit16' given to the document being family agreement is merely a part of an afterthought in order to delay the proceedings of the Ld. Magistrate.
8. I very respectfully state that in view of the aforesaid and the allegations made in the Criminal Complaint No. 4818 of 1997 it is humbly prayed that the adinterim relief as granted by this Hon'ble Court be vacated in the interest of justice."
18. The Supreme Court, in the case of Kalia V. State of M.P., (2013) 10 SCC 758 has explained in details regarding the permissibility to adduce secondary evidence relating to a document. I may quote the observations made by the Supreme Court, Page 9 of 25 34 of 50 R/SCR.A/538/2015 CAV JUDGMENT in paragraph Nos. 13 and 14, reads as under: "13. Section 65(c) of the Act 1872 provides that secondary evidence can be adduced relating to a document when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason, not arising from his own default, or neglect, produce it in reasonable time. The court is obliged to examine the probative value of documents produced in court or their contents and decide the question of admissibility of a document in secondary evidence. (Vide: H. Siddiqui (dead) by Lrs. v. A. Ramalingam, AIR 2011 SC 1492; and Rasiklal Manikchand Dhariwal & Anr. v. M.S.S. Food Products, (2012) 2 SCC 196). However, the secondary evidence of an ordinary document is admissible only and only when the party desirous of admitting it has proved before the court that it was not in his possession or control of it and further, that he has done what could be done to procure the production of it. Thus, the party has to account for the nonproduction in one of the ways indicated in the section. The party further has to lay down the factual foundation to establish the right to give secondary evidence where the original document cannot be produced. When the party gives in evidence a certified copy/secondary evidence without proving the circumstances entitling him to give secondary evidence, the opposite party must raise an objection at the time of admission. In case, an objection is not raised at that point of time, it is precluded from being raised at a belated stage. Further, mere admission of a document in evidence does not amount to its proof. Nor, mere marking of exhibit on a document does not dispense with its proof, which is otherwise required to be done in accordance with law. (Vide: The Roman Catholic Mission v. The State of Madras, AIR 1966 SC 1457; Marwari Khumhar & Ors. v. Bhagwanpuri Guru Ganeshpuri & Anr., AIR 2000 SC 2629; R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami and V.P. Temple & Anr., AIR 2003 SC 4548; Smt. Dayamathi Bai v. K.M. Shaffi, AIR 2004 SC 4082; and Life Insurance Corporation of India & Anr. v. Rampal Singh Bisen, (2010) 4 SCC 491).
14. In M. Chandra v. M. Thangamuthu & Anr., (2010) 9 SCC 712, this Court considered this aspect in detail and held as under:
Page 10 of 2535 of 50 R/SCR.A/538/2015 CAV JUDGMENT "We do not agree with the reasoning of the High Court. It is true that a party who wishes to rely upon the contents of a document must adduce primary evidence of the contents, and only in the exceptional cases will secondary evidence be admissible.
However, if secondary evidence is admissible, it may be adduced in any form in which it may be available, whether by production of a copy, duplicate copy of a copy, by oral evidence of the contents or in another form. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. It should be emphasised that the exceptions to the rule requiring primary evidence are designed to provide relief in a case where a party is genuinely unable to produce the original through no fault of that party." A similar view has been reiterated in J. Yashoda v. K. Shobha Rani, AIR 2007 SC 1721."
19. The Supreme Court, in the case of R.V.E. Venkatachala Gounder V. Arulmigu Viswesaraswami & V.P. Temple and another, (2003) 8 SCC 752, made the following observations in paragraph No.20: "The learned counsel for the defendantrespondent has relied on The Roman Catholic Mission Vs. The State of Madras & Anr. AIR 1966 SC 1457 in support of his submission that a document not admissible in evidence, though brought on record, has to be excluded from consideration. We do not have any dispute with the proposition of law so laid down in the abovesaid case. However, the present one is a case which calls for the correct position of law being made precise. Ordinarily an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in evidence may be classified into two classes: (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as 'an exhibit', an objection as to its admissibility is not excluded and Page 11 of 25 36 of 50 R/SCR.A/538/2015 CAV JUDGMENT is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken before the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The later proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the Court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the Court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the Court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the later case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in superior Court."
20. The Supreme Court, in the case of Ranvir Singh and another V. Union of India, AIR 2005 SC, 3467, observed in paragraph No.26 as under: "26.Contention of Mr. Nariman that the Xerox copies of the deeds of sale produced by the parties were not admissible in evidence in terms of Section 51A of the Land Acquisition Act is stated to be rejected. The provisions of the Indian Evidence Act postulate that Page 12 of 25 37 of 50 R/SCR.A/538/2015 CAV JUDGMENT secondary evidence can be led by the parties in the event primary evidence is not available. In a case of this nature, however, the claimantrespondents may be aware of the transactions. Indisputably, they did not raise any objection as regard admissibility of the said deeds of sale.The xerox copy of the deeds of sale were marked exhibits without any objection having been taken by the Respondents herein. Such an objection cannot, therefore, be taken for the first time before this Court.[See R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami and V.P. Temple and Another, (2003) 8 SCC 752 and Dayamathi Bai (Smt.) v. K.M. Shaffi, (2004) 7 SCC 107]. What would be their evidentiary value may ultimately fall for consideration by the Court but the said deeds of sale cannot be rejected only on the ground that only Xerox copies thereof had been brought on records. The onus to prove the market value as obtaining on the date of notification was on the claimants. It was for them to adduce evidence to prove their claims by bringing sufficient and cogent materials on record so as to enable the court to determine the market value of the acquired land as on the date of issuance of notification under Section 4 of the Land Acquisition Act. If the claimants themselves filed Xerox copies of the deeds of sale or failed to examine any witness to prove the relevant factors for determining the market value of the land acquired with reference to the said sale instances, they cannot now be permitted to resile therefrom and contend that the said documents should be totally ignored."
21. Mr. Gupta, the learned advocate appearing for the petitioner, placed reliance on the decision of the Supreme Court in the case of Sunil Mehta and another V. State of Gujarat, (2013) 9SCC 209, wherein the Court made the following observations in paragraph Nos. 12, 13, 14, 15, 16, 17: "12. Sections 244 to 246 leave no manner of doubt that once the accused appears or is brought before the Magistrate the prosecution has to be heard and all such evidence as is brought in support of its case recorded. The power to discharge is also under Section 245 exercisable only upon taking all of the evidence that is referred to in Section 244, so also the power to frame charges in terms of Section 246 has to be exercised on the basis of the Page 13 of 25 38 of 50 R/SCR.A/538/2015 CAV JUDGMENT evidence recorded under Section 244. The expression "when such evidence has been taken"
appearing in Section 246 is significant and refers to the evidence that the prosecution is required to produce in terms of Section 244(1) of the Code. There is nothing either in the provisions of Sections 244, 245 and 246 or any other provision of the Code for that matter to even remotely suggest that evidence which the Magistrate may have recorded at the stage of taking of cognizance and issuing of process against the accused under Chapter XV tantamounts to evidence that can be used by the Magistrate for purposes of framing of charges against the accused persons under Section 246 thereof without the same being produced under Section 244 of the Code. The scheme of the two Chapters is totally different. While Chapter XV deals with the filing of complaints, examination of the complainant and the witnesses and taking of cognizance on the basis thereof with or without investigation and inquiry, Chapter XIX Part B deals with trial of warrant cases instituted otherwise than on a police report. The trial of an accused under Chapter XIX and the evidence relevant to the same has no nexus proximate or otherwise with the evidence adduced at the initial stage where the Magistrate records depositions and examines the evidence for purposes of deciding whether a case for proceeding further has been made out. All that may be said is that evidence that was adduced before a Magistrate at the stage of taking cognizance and summoning of the accused may often be the same as is adduced before the Court once the accused appears pursuant to the summons. There is, however, a qualitative difference between the approach that the Court adopts and the evidence adduced at the stage of taking cognizance and summoning the accused and that recorded at the trial. The difference lies in the fact that while the former is a process that is conducted in the absence of the accused, the latter is undertaken in his presence with an opportunity to him to crossexamine the witnesses produced by the prosecution.
13. Mr. U.U. Lalit, learned senior counsel appearing for the respondent complainant strenuously argued that Section 244 does not envisage, leave alone provide for in specific terms, crossexamination of witnesses produced by the prosecution by the accused. He submitted that since the provision of Section 244 did not recognise any such right of an accused before framing of charges, it did not make any difference whether the Page 14 of 25
39 of 50 R/SCR.A/538/2015 CAV JUDGMENT Court was evaluating evidence adduced at the stage of cognizance and summoning of the accused or that adduced after he had appeared before the Magistrate under Section 244. He particularly drew our attention to subsection (4) to Section 246 which requires the Magistrate to ask the accused whether he wishes to crossexamine any, and if so, which of the witnesses for the prosecution whose evidence has been taken. It was contended by Mr. Lalit that the provision of subsection (4) to Section 246 provides for cross examination by the accused only after charges have been framed and not before.
14. There is, in our opinion, no merit in that contention which needs to be noticed only to be rejected. We say so for reasons more than one. In the first place, the expression "Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution" appearing in Section 244 refers to evidence within the meaning of Section 3 of the Indian Evidence Act, 1872. Section 3 reads as under:
3. Interpretation clause In this Act the following words and expressions are used in the following senses, unless a contrary intention appears from the context:--
"Evidence".--"Evidence" means and includes--
1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry, such statements are called oral evidence;
2) all documents including electronic records produced for the inspection of the Court, such documents are called documentary evidence."
15. We may also refer to Chapter X of the Evidence Act which deals with examination of witnesses. Section 137 appearing in that Chapter defines the expressions examinationinchief, cross and re examination while Section 138 stipulates the order of examinations and reads as under:
"138. Order of examinations. Witnesses shall be first examinedinchief, then (if the adverse party Page 15 of 25 40 of 50 R/SCR.A/538/2015 CAV JUDGMENT so desires) crossexamined, then (if the party calling him so desires) reexamined.
The examination and crossexamination must relate to relevant facts, but the crossexamination need not be confined to the facts to which the witness testified on his examinationinchief.
Direction of reexamination. The reexamination shall be directed to the explanation of matters referred to in crossexamination; and, if new matter is, by permission of the Court, ntroduced in reexamination, the adverse party may further crossexamine upon that matter."
16. It is trite that evidence within the meaning of the Evidence Act and so also within the meaning of Section 244 of the Cr.P.C. is what is recorded in the manner stipulated under Section 138 in the case of oral evidence. Documentary evidence would similarly be evidence only if the documents are proved in the manner recognised and provided for under the Evidence Act unless of course a statutory provision makes the document admissible as evidence without any formal proof thereof.
17. Suffice it to say that evidence referred to in Sections 244, 245 and 246 must, on a plain reading of the said provisions and the provisions of the Evidence Act, be admissible only if the same is produced and, in the case of documents, proved in accordance with the procedure established under the Evidence Act which includes the rights of the parties against whom this evidence is produced to crossexamine the witnesses concerned"
22. The Supreme Court, in the case of Bipin Shantilal Panchal V. State of Gujarat reported in 2001 (2) G.L.H. 545 has dealt with the issue in hand at length. The observations made by the Supreme Court in paragraphs Nos.12 to 16 are as under: "12. As pointed out earlier, on different occasions the trial Judge has chosen to decide question of admissibility of documents or other items of evidence, as and when objections thereto were raised Page 16 of 25 41 of 50 R/SCR.A/538/2015 CAV JUDGMENT 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, when the same question is recanvassed, 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 remoulded 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 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 Page 17 of 25 42 of 50 R/SCR.A/538/2015 CAV JUDGMENT 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 recanvassed 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."
23. What is discernible from the decisions of the Supreme Court referred to above is that the objection as to the admissibility of secondary evidence relating to a document can be raised even after the document has been marked as "an exhibit" or even in revision if the document sought to be proved is itself inadmissible. If the objection is directed not against the admissibility of the document but against the mode of proof thereof on the ground of irregularity or insufficiency etc. such objection is not entertainable if the document has been exhibited without any objection from the other side. The objection of the applicant herein is only as to the mode of proof of the said document but not to the admissibility of the said document.
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24. The principle of law as explained by the Supreme Court in the Case of Sunil Mehta (supra) is that evidence within the meaning of Section 244 Cr.P.C. is what is recorded in the manner stipulated under Section 138 of the Evidence Act in the case of oral evidence and the documentary evidence would similarly be evidence only if the documents are proved in the manner recognized and provided for under the Evidence Act. In short, the evidence referred to in Sections 244, 245 and 246 Cr.P.C. must be admissible only if the same is produced and, in the case of documents, proved in accordance with the procedure established under the Evidence Act. The decision of the Supreme Court in the case of Sunil Mehta (supra) has been relied upon to fortify the submission that once the document in question is held to be inadmissible then no case is made out for the purpose of framing charge against the accused.
25. Any document filed by either party passes through three stages before it is held proved or disproved. There are:
First stage: when the documents are filed by either party in the Court; these documents though on file, do not become part of the judicial Page 19 of 25 44 of 50 R/SCR.A/538/2015 CAV JUDGMENT record;
Second Stage: When the documents are tendered or produced in evidence by a party and the Court admits the documents in evidence. A document admitted in evidence becomes a part of the judicial record of the case and constitutes evidence;
Third Stage: the documents which are held 'proved not proved or disproved' when the Court is called upon to apply its judicial mind by reference to Section 3 of the Evidence Act.
26. In the present case, the secondary evidence in the form of a xerox copy of the document, could not be said to have been adduced without laying foundation for its admissibility. A responsible officer of the High Court has also been examined as a witness. He has deposed about the document in clear terms.
27. Even otherwise, the mere admission of a document in evidence does not amount to its proof.
28. When the Court is called upon to examine the admissibility of a document it concentrates only the document. When called upon to form a judicial opinion whether a document has been proved, disproved or not proved the Court would look not Page 20 of 25 45 of 50 R/SCR.A/538/2015 CAV JUDGMENT at the document alone or only at the statement of the witness standing in the box; it would take into consideration probabilities of the case as emerging from the whole record. It could not have been intendment of any law, rule or practice direction to expect the Court applying its judicial mind to the entire record of the case, each time a document was placed before it for being exhibited and from an opinion if it was proved before marking it as an exhibit.
29. The marking of a document as an exhibit, be it in any manner whatsoever either by use of alphabets or by use of numbers, is only for the purpose of identification. While reading the record the parties and the Court should be able to know which was the document before the witness when it was deposing. Absence of putting an endorsement for the purpose of identification no sooner a document is placed before a witness would cause serious confusion as one would be left simply guessing or wondering while was the document to which the witness was refering to which deposing. Endorsement of an exhibit number on a document has no relation with its proof. Neither the marking of an exhibit number can be postponed till the document has been held proved; nor the document can be held to have been proved Page 21 of 25 46 of 50 R/SCR.A/538/2015 CAV JUDGMENT merely because it has been marked as an exhibit.
30. I may also quote with profit a decision of this Court in the case of State of Gujarat V. Gaurang Mathurbhai Leava reported in 1999 (2) G.L.H. 564. The observations made in paragraph Nos. 5, 6, 7 and 8 are as under: "5. When the court finds that a particular document tendered in evidence by the witness is duly proved in accordance with the provisions of the Evidence Act or the provisions of other Statutes applicable, the Court may exhibit the same so that the same can be considered while disposing of the matter finally. About the meaning of the word "exhibit", a question arose before the Calcutta High Court in the case of Rakhaldas Pramanick v. Sm. Shantilata Ghose and others AIR 1956 Calcutta 619 wherein it is made clear that "Exhibit" means a document exhibited for the purpose of being taken into consideration in deciding some question or other in respect of the proceeding in which it is filed. Let me therefore make it clear that the document when it is exhibited, the Court, while exhibiting the same does not finally decide the rights of the parties, or form any opinion, or express any opinion on the document or on the point that arises for consideration. In short, no legal complexion is given to the issues that arise for consideration. After the hearing is over, while finally adjudicating, the Court is free to discard a particular document holding that it was not duly proved or holding that the document was partly proved namely, execution alone thereof was proved, but as the contents thereof were not proved, the same cannot be taken into account. If either of the parties later on files during the course of the hearing an application to expunge the document admitted in record, the court may hearing the parties expunge the same if it finds that the document is not legally and correctly proved & exhibited. In short, by exhibiting the document merits or demerits thereof are not dissected, and the rights and obligations of the parties are not finally decided, or legal complexion is not given to the issue that arises for consideration as giving exhibit to the document is the procedural aspect of the matter and it merely shows that document is formally proved. The rights & obligations of the parties are to be decided while finally appreciating the evidence for the purpose of Page 22 of 25 47 of 50 R/SCR.A/538/2015 CAV JUDGMENT pronouncing final verdict. In view of the matter, the order passed, admitting the letters and greeting cards, in evidence can be said to be the interlocutory order.
6. Some of the decisions on the point in support of my such view may be referred to. In the case of Indra Nath Guha v. State of West Bengal 1979 Cri. L.J. NOC 129 (CAL.),when likewise question was raised with regards to the admissibility of the oral evidence, it is held that the order concerning the admissibility of oral evidence is an interlocutory order and not the final order. This decision can mutatis mutandis be made applicable to the documentary evidence also. The Allahabad High Court in the case of Bhaiyalal v. Ram Din AIR 1989 Allahabad 130 has held that by mere fact the document is exhibited, it does not follow that the Court stands precluded from examining the question on the basis of evidence led by the parties whether the document in question was exempted by the party by which it purports to have been executed. The fact that document is exhibited, it merely establishes that it has been formally proved. But where the execution of the document is challenged, the court of fact is clearly entitled to weigh the evidence led by the parties and decide whether the document was really executed by the party alleged to have executed the same. In Manohar Nath Sher v. State of J. & K. 1980 CRI. L.J. 292, it is held that order allowing or disallowing the production of the document does not put an end to proceedings in which the order is made. Such an order is only a step in the proceeding and it relates to a procedural matter and does not purport to decide the rights of the parties. Such an order is the interlocutory order and revision against the same is not maintainable. The High Court of Lahore in Robert Cameron Chamarette v. Mrs. Phyllis Ethel Chamarette A.I.R. 1937 Lahore 176 has held that admissibility of a particular evidence is the interlocutory order which can subsequently be held to be inadmissible though ofcourse it is not so done often. All these decisions abundantly make it clear that the document if exhibited by the Court passing the order, the order which is passed would be the interlocutory order and not the final order determining the rights and liabilities of the parties finally because subsequently either of the parties can question the genuineness of the document and in that case it is open to the Court to accept or discard the document having due regards to the facts and circumstances on record. This revision application against the order in question is, therefore, in view of Section 397(2) of the Criminal Procedure Code is not maintainable, Page 23 of 25 48 of 50 R/SCR.A/538/2015 CAV JUDGMENT as the order in question is the interlocutory order.
7. It is contended by the learned APP, that the document can be exhibited only after the other side crossexamines the witness, or reexamines the witness as the case may be. The document ought not to have been exhibited as prosecution was not given the chance to Reexamine putting the question which can be put in crossexamination. The contention does not gain a ground to stand upon. Neither any procedural law nor any provision of the Evidence Act mandates to exhibit the document only after the other side assails, either in the crossexamination or in the reexamination, the statements made by the witness qua the proof of the document and the Court is satisfied about the reliability of the evidence in that regard. Whatever may be the stage of the examination, if the document is found to have been duly proved because of necessary statements regarding proof thereof having been made by the witness, the Court may exhibit and admit the same in evidence apart from the question of its appreciation later on, or challenge to be made by the other side which has been sought to be done in the present case. The contention therefore must fail. It may be mentioned that the right of the prosecution to assail the exhibition of the document is not curtailed or taken away by such observation.
8. As per Sec. 67 of the Indian Evidence Act a document is required to be proved in the manner provided by Sec. 45, 47 or 73 of that Act or by internal proof afforded by its own contents. Sec. 47 provides different methods of proving the handwriting of a person. Under Sec. 67 if a document is signed by a person or written wholly or in part by any person, the signature of that person or handwriting of that person must be proved to be in his handwriting. If Sections 47 and 67 of the Evidence Act are read together, what can reasonably be deduced is that the signature of a person on a document can be proved either by examining the person in whose presence the signature was affixed, or else by examining another person who is acquainted with the handwriting of the executant of the document, or the person alleged to have written the document and is able to prove his signature by his opinion. When Sections 45 & 47 of the Evidence Act are read together, what can be deduced is that for proving the handwriting and signature the opinion of the expert and of the persons acquainted with the handwriting of that person are relevant."
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31. In the aforesaid view of the matter, I do not find any good reason to interfere with the impugned order or decision of the trial Court in exercise of my supervisory jurisdiction under Article 227 of the Constitution of India.
32. In the result, this application fails and is hereby rejected. Interim relief granted earlier stands vacated forthwith.
(J.B.PARDIWALA, J.) Manoj Page 25 of 25 50 of 50