Jharkhand High Court
Prince vs The State Of Jharkhand ... Opposite ... on 10 March, 2022
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 151 of 2022
Prince, aged about 54 years, son of Sri Suranjan Prasad, resident of Road
No.A-1, Hawai Nagar, Near Birsa Chowk, P.O. Hatia, P.S. Jagarnathpur,
District- Ranchi (Jharkhand) ... Petitioner
-Versus-
The State of Jharkhand ... Opposite Party
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner : Mr. A.K. Kashyap, Sr. Advocate For the Opposite Party-State : Mr. Vineet Kumar Vashistha, A.P.P.
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03/10.03.2022. Heard Mr. A.K. Kashyap, learned Senior counsel appearing for the petitioner and Mr. Vineet Kumar Vashistha, learned A.P.P. for the State.
2. This petition has been filed for quashing the order dated 10.01.2022 passed by the learned Sub Divisional Judicial Magistrate, Gumla in Spt. G.R. Case No.639/1992 arising out of Ghaghra P.S. Case No.70/1992, pending in the court of the learned Sub Divisional Judicial Magistrate, Gumla.
3. Mr. A.K. Kashyap, learned Senior counsel appearing for the petitioner submits that the petitioner has earlier moved before this Court in Cr.M.P. No.403 of 2016 which was filed for examination of one witness under Section 311 Cr.P.C. The said petition was disposed of vide order dated 07.12.2021 with direction that the petitioner on the date fixed by the trial court will examine P.W.3. He further submits that on 14.12.2021, the said P.W.3 was recalled and on the same day he was examined by the petitioner and thereafter P.W. 3 was discharged. He also submits that a petition was filed on behalf of the accused to exhibit mark the Departmental Enquiry report dated 20.10.1995 by which the petitioner was exonerated by the departmental proceeding. He further submits that the learned court below 2 has rejected the said petition on the ground that the case is pending since 1992 and the petition filed by the petitioner is mischievous one and against the procedural law and not maintainable in law.
4. Mr. A.K. Kashyap, learned Senior counsel appearing for the petitioner assailed the impugned order on the ground that there was no question of filling up lacuna as the document was received and filed in terms of Sub- section (3) of Section 294 Cr.P.C. He further submits that the document is a genuine and valid one passed by a competent authority. The said document may be read in evidence without proof of the signature of the person to whom it purports to be signed. There was no objection on behalf of the Public Prosecutor. On the point of lacuna, he relied upon the judgment rendered by the Hon'ble Supreme Court in the case of Rajendra Prasad v. Narcotic Cell, reported in (1999) 6 SCC 110.
5. Paragraphs 8 and 9 of the said judgment is quoted herein below:
"8. Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trial of the case, but an oversight in the management of the prosecution cannot be treated as irreparable lacuna. No party in a trial can be foreclosed from correcting errors. If proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the court should be magnanimous in permitting such mistakes to be rectified. After all, function of the criminal court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better.
9. The very same decision Mohanlal Shamji Soni v. Union of India which cautioned against filling up lacuna has also laid down the ratio thus: (AIR Headnote) "It is therefore clear that the criminal court has ample power to summon any person as a witness or recall and re-examine any such person even if the evidence on both sides is closed and the jurisdiction of the court must obviously be dictated by exigency of the situation, and fair play and good sense appear to be the only safe guides and that only the requirements of justice command the examination of any person which would depend on the facts and circumstances of each case."3
6. Mr. A.K. Kashyap, learned Senior counsel appearing for the petitioner further submits that Section 294 Cr.P.C. has been considered by the Allahabad High Court in the case of Saddiq & others v. State, reported in 1981 CRI L.J. 379.
Paragraph 9 of the said judgment is quoted herein below:
"9. It is open to the prosecution or the accused to dispute the genuineness of a document filed by the opposite party under Sub-section (1) of Section 294, Cr. P. C. In such a case the signatory of the document must be examined by the party filing the document to prove his signature and also the correctness of its contents and the evidence of the signatory will be the substantive evidence and the document may be used to corroborate or discredit his testimony. But where the genuineness of a document filed by the prosecution or the accused under Sub-section (1) of section 294, Cr. P. C. is not disputed by the opposite party, Sub-section (3) of Section 294, Cr, p. C. is applicable and such a document may be read as substantive evidence. Section 294, Cr. P. C. is a new section as it had no equivalent in the Code of Criminal Procedure 1898. It is based on the rule of evidence that facts admitted need not be proved contained in Section 58, Evidence act. The object of enacting this section appears to be to avoid the time of the Court being wasted by examining the signatory of the document filed by the prosecution or the accused under sub- section (1) of Section 294, Cr. P. C. to prove his signature and the correctness of its contents if its genuineness is not disputed by the opposite party. If the signature and the correctness of the contents of a document filed by the prosecution or the accused under Sub-section (1) of Section 294, Cr. P. C. whose genuineness is not disputed by the opposite party are still required to be proved by examining the signatory of the document, the very object of enacting Section 294, Cr. P. C. will be defeated. We are, therefore, of the opinion that all documents filed by the prosecution or the accused under Sub-section (1) of Section 294, Cr. P. C. whose genuineness is not disputed by the opposite party may be read as substantive evidence under Sub-section (3) of section 294, Cr. P. C."
7. Mr. A.K. Kashyap, learned Senior counsel appearing for the petitioner further relied upon the judgment rendered by the Full Bench of the Bombay High Court in the case of Shaikh Farid Hussinsab v. The State of Maharashtra, reported in 1983 CRI L.J. 487.
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8. Paragraph 7 of the said judgment is quoted herein below:
"7. Section 294 of the Code is introduced to dispense with this avoidable waste of time and faciliate removal of such obstruction in the speedy trial. The accused is now enabled to waive the said right and save the time. This is a new provision having no corresponding provision in the repealed Code of Criminal Procedure. It requires the prosecutor or the accused, as the case may be, to admit or deny the genuineness of the documents sought to be relied against him at the outset in writing. On his admitting or indicating no dispute as to the genuineness, the Court is authorised to dispense with its formal proof thereof. In fact after indication of not dispute as to the genuineness, proof of documents is reduced to a sheer empty formality. The section is obviously aimed at undoing the judicial view by legislative process."
9. Mr. Vineet Kumar Vashistha, learned A.P.P. for the State submits that the case is of the year 1992 and the trial court has rejected the petition filed by the petitioner merely opportunity was not with the learned Public Prosecutor to object on the genuineness of the document.
10. The Court has perused the impugned order. The learned court below has rejected the petition filed by the petitioner under Section 294 Cr.P.C. on the point of lacuna and the case is of the year 1992. On perusal of Section 294 Cr.P.C., it is crystal clear that where the genuineness of a document filed by the prosecution or the accused under Sub section (1) of Section 294 Cr.P.C. is not disputed by the opposite party, Sub section (3) of Section 294 Cr.P.C. is applicable and such document may be read as substantive evidence., as held by the Allahabad High Court in the case of Saddiq (supra) and by the Full Bench of the Bombay High Court in the case of Shaikh Farid Hussinsab (supra). There is no limitation prescribed under that Section. The lacuna has been dealt with by the Hon'ble Supreme Court in the case of Rajendra Prasad (supra).
11. In view of the aforesaid facts and considering the aforesaid judgments, the order dated 10.01.2022 passed by the learned Sub 5 Divisional Judicial Magistrate, Gumla in Spt. G.R. Case No.639/1992 arising out of Ghaghra P.S. Case No.70/1992, pending in the court of the learned Sub Divisional Judicial Magistrate, Gumla is, hereby, quashed.
12. The petitioner shall file fresh petition along with entire documents to mark exhibit in terms of Section 294 Cr.P.C. by serving advance copy to the Public Prosecutor on 24.03.2022 and after hearing the parties the learned court below shall decide the said petition on the same day, in accordance with law and in terms of Section 294 Cr.P.C. The concerned court will not entertain any petition after 24.03.2022 for exhibiting such documents.
13. Accordingly, this petition stands disposed of.
(Sanjay Kumar Dwivedi, J.) Ajay/