Karnataka High Court
M/S. Supreme Chemiplast vs State Of Karnataka on 19 August, 2014
Author: Jawad Rahim
Bench: Jawad Rahim
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 19TH DAY OF AUGUST 2014
BEFORE
THE HON'BLE Dr.JUSTICE JAWAD RAHIM
CRL.PETITION NO. 1701/2014
BETWEEN
1. M/S. SUPREME CHEMIPLAST
PIPING PVT., LTD.,
NO. 5A, OWNERS COURT
37, MONTIETH LANE
EGMORE, CHENNAI - 600008.
REP. BY SIMON JOSEPH
2. SIMON JOSEPH
S/O. LATE C.L. JOSEPH
NO. 15, SOORAMMAL STREET
EGMORE, CHANNAI -600008. ... PETITIONERS
(BY SRI. BICHKAL VENKAT RAO, ADV.,)
AND
1. STATE OF KARNATAKA
BY ASST. COMMISSIONER OF POLICE
SPECIAL ENQUIRIES, CENTRAL CRIME BRANCH
N.T. PET, BANGALORE CITY
REP. BY STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BANGALORE - 560001
2. KARNATAKA URBAN WATER SUPPLY AND
DRAINAGE BOARD, REP. BY FINANCIAL ADVISOR AND
CHIEF ACCOUNT'S OFFICER, BANGALORE
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CAUVERY BHAVAN, KHB COMPLEX
K.G. ROAD, BANGALORE - 09. ... RESPONDENTS
(BY SRI. NAZRULLA KHAN, HCGP FOR R1, R2 SERVED)
THIS CRL.P FILED U/S.482 CR.P.C BY THE ADVOCATE
FOR THE PETITIONER PRAYING THAT THIS HON'BLE COURT
MAY BE PLEASED TO SET ASIDE THE OBSERVATION MADE
BY THE TRIAL COURT IN DEPOSITION OF PW-1 DATED
03.03.2014 VIDE ANNEXURE - C REGARDING MARKING OF
EXHIBITS OTHER THAN ORIGINALS BY HOLDING THAT THE
SAME ARE NOT IN ACCORDANCE WITH THE EVIDENCE ACT.
THIS PETITION COMING ON FOR ADMISSION THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
Petitioners are accused nos.1 and 2 in C.C.2900/01 facing charge for the offences punishable under Sections 468, 471, 420 read with Section 34, I.P.C. They have brought in question the order of the magistrate dated 3.3.2014 whereby the magistrate has permitted the prosecutor to mark two xerox copies of letters, copy of which is produced at Annexure-F. They purport to be covering letter addressed by the petitioner company through its agent.
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2. The grievance of the petitioner-accused is, they are xerox copies and could not have been permitted to be marked in evidence as Exs.P12 and P13. Learned counsel would contend, for documents to be admissible, it should meet the requirement of Sections 63 and 64 of the Indian Evidence Act, as otherwise its admissibility would be illegal. He gains citational support to his contention relying on the decision in the case of J.YASHODA .vs. K.SHOBHA RANI ([2007] SCC (Crl. 9).
3. Thus it could be seen, the objection raised by the accused to mark Exs.P12 and P13 has been rejected by the magistrate being of the opinion that it is admissible under Section 175(5) of the Evidence Act. The question therefore is, whether mere marking of the document as done by the learned trial judge amounts to admissibility of the document for all intent and purpose?
4. Learned counsel would submit, the decision cited at the Bar deals with the case where documents are permitted to be marked and therefore marking itself has to be tested from the pint of its legality keeping in mind the mandate of 4 Sections 63 and 64 of the Indian Evidence Act. Therefore it is necessary to first advert to the case law which the learned counsel has cited.
5. As could be seen from the judgment, what was questioned was the ultimate decision of the court after completion of trial. During such appeal proceedings, a question was raised before the High Court that one of the documents marked was not secondary evidence as it was not meeting the prerequisites of Sections 63 and 64 of the Evidence Act. The High Court accepted the contention and held certain documents marked could not have been treated as secondary evidence and therefore it impacted the decision of the court. In appeal against the order, the apex court accepted the view of the High Court and upheld its finding.
6. Before us is not a case of similar facts. Here is a case where at the stage of recording evidence, petitioner has rushed questioning its admissibility. However it is not disputed they form part of the charge sheet submitted to court as envisaged under Section 173(5), Cr.P.C. We have 5 to now see whether marking itself amounts to admission.
7. Our attention cannot escape Section 136 of the Evidence Act which envisages 'when either party proposes to give evidence of any fact, the Judge may ask the party proposing to give the evidence in what manner the alleged fact, if proved, would be relevant; and the Judge shall admit the evidence if he thinks that the fact, if proved, would be relevant, and not otherwise. If the fact proposed to be proved is one of which evidence is admissible only upon proof of some other fact, such last-mentioned fact must be proved before evidence is given of the fact first-mentioned, unless the party undertakes to give proof of such fact, and the court is satisfied with such undertaking.'' The phraseology of the provision is very clear. It is the discretion of the court to admit a particular evidence. The word used is 'evidence.' What is 'evidence' is defined in the Act in Section 3 and it reads thus:
'Evidence' means and includes-
(1) all statements which the court permits or requires to be made before it by witnesses, in relation to maters of fact under inquiry;
such statements are called oral evidence; 6 (2) all documents including electronic records produced for inspection of the court;
such documents are called documentary
evidence.
Therefore the term evidence includes ocular and
documentary evidence. By amendment to the Evidence Act, particularly the word 'evidence,' all documents including electronic records produced for the inspection of the court is also included. Read with Section 136, it means, the court has discretion to allow such evidence and allowing of such evidence does not amount to admissibility, as could be seen from the words 'if the fact proposed to be proved is one of which evidence is admissible only upon proof of some other fact, such last-mentioned fact must be proved before evidence is given of the fact first-mentioned, unless the party undertakes to give proof of such fact, and the court is satisfied with such undertaking.' This has been held to mean marking which does not amount to admission. Admission is the ultimate decision of the court which the court has to record. Besides, we must also keep in mind the provisions of Section 167 of the Evidence Act which envisages 'Improper admission or rejection of evidence shall 7 not be ground of itself for a new trial or reversal of any decision in any case, if it shall appear to the court before which such objection is raised that, independently of the evidence objected to and admitted, there was sufficient evidence to justify the decision, or that, if the rejected evidence had been received, it ought not to have varied the decision.' Therefore there is legal permissibility of marking, but ultimately admissibility depends on several other factors as referred to in the provisions of Section 63 & 64 read with Section 136 of the evidence act.
8. In the circumstances, all that could be done is, make an observation that mere marking of Exs.P12 and P13 shall not be taken as admission and it is subject to the provisions indicated above. Accordingly the petition is disposed off with the above observations.
Sd/-
JUDGE vgh*