Gujarat High Court
Thakkar Vasudev Kanaiyalal vs Amendment As Per Order Dated 03 08 2022 on 4 August, 2023
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
NEUTRAL CITATION
C/SCA/8580/2022 ORDER DATED: 04/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8580 of 2022
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THAKKAR VASUDEV KANAIYALAL
Versus
AMENDMENT AS PER ORDER DATED 03 08 2022 & 1 other(s)
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Appearance:
PARTY IN PERSON(5000) for the Petitioner(s) No. 1
MS TRUSHA K PATEL(2434) for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 04/08/2023
ORAL ORDER
1. By way of present writ-application under Article 226 of the Constitution of India the writ-applicant herein - party-in-
person Thakkar Vasudev Kanaiyalal has prayed for the following reliefs:-
"1. Be pleased to declare the order dated 11/02/2022 passed by Mr. S. H. Belim, Additional Registrar, in-charge of certified copy department of Vadodara District Court, as null and void permanently as the same is unlawful and arbitrary.
2. Considering the above submission/ representations, be pleased to order all the officers looking after the work of certified copy department of District Court, Vadodara to Page 1 of 31 Downloaded on : Sun Sep 17 00:16:59 IST 2023 NEUTRAL CITATION C/SCA/8580/2022 ORDER DATED: 04/08/2023 undefined immediately provide certified copies of all the papers (exhibited as well as not exhibited) available in District Court Registry in the files of total five cases i.e. Criminal Revision Application Nos. 164 of 2021, 165 of 2021, 166 of 2021, 167 of 2021 and 168 of 2021, after collecting deficit fees from me.
3. Be pleased to pass a judicial order in the interest of justice for all the Courts of the Gujarat State that they shall comply with the provisions of Criminal and Civil Manual of Honourable High Court of Gujarat, provision of Section 76 of the Indian Evidence Act, the judgments by which the Honourable High Court of Gujarat has established principles in this regard and the orders passed in C.S.C.A. Nos. 14565 of 2014, 778 of 2016, 2321 of 2013 and 3945 of 2015.
4. Be pleased to order the Chief Secretary to the Government of Gujarat to initiate legal action against Mr. S. H. Belim, Additional Registrar, in-charge of certified copy department of Vadodara District Court for committing serious offence by showing abhorrence to the above cited judgments of the Honourable High Court of Gujarat and the provisions of the Indian Evidence Act enacted by the Government of India as well as the provisions of Criminal Manual formulated as per the rules of the Honourable High Court of Gujarat."
2. Mr. Thakkar Vasudev Kanaiyalal - learned party-in-
Page 2 of 31 Downloaded on : Sun Sep 17 00:16:59 IST 2023NEUTRAL CITATION C/SCA/8580/2022 ORDER DATED: 04/08/2023 undefined person submitted that the writ-applicant herein has filed total five criminal revision applications before the learned Sessions Court, Vadodara as referred above and had sought for certified copies of available papers in the file of the said cases through an application dated 27.1.2022, inter alia, stating that "in connection with above cases it is requested to furnish under the provisions of Section 76 of the Indian Evidence Act, the certified copies of all papers from beginning to end, notices issued by Courts, copy of services of notices or police report orders the writ-applicant herein submitted that by submitting Rs.20/- in cash. It was submitted that the writ-applicant herein demanded certified copy of the cases as mentioned above from the Registry of District Court. Vadodara. It was submitted that the Record-Keeper Mr. S. S. Trivedi informed the writ-
applicant herein vide letter dated 14.2.2022 that certified copies of exhibited documents in the aforesaid cases were ready and that the writ-applicant could collect them. The aforesaid communication, in view of the order passed by Mr. S. H. Belim, Additional Registrar, in-charge of certified copy Page 3 of 31 Downloaded on : Sun Sep 17 00:16:59 IST 2023 NEUTRAL CITATION C/SCA/8580/2022 ORDER DATED: 04/08/2023 undefined department of Vadodara District Court. The said order dated 11.2.2022 provided that the certified copies of only exhibited documents of cases be provided. It was submitted that being aggrieved by the said order the writ-applicant herein has approached this Court seeking relief as prayed for. Placing reliance on the aforesaid submissions, it was submitted that the order impugned be quashed and set aside, the same being against the provisions of Indian Evidence Act.
3. Per contra, Ms. Trusha Patel, the learned advocate appearing for the respondent No.1 placed reliance on the affidavit-in-reply duly filed which is produced at page-36. Ms. Patel, the learned advocate submitted that all the documents which were exhibited have been supplied to the writ-applicant herein. It was submitted that the respondent herein has scrupulously followed Chapter-XXII, more particularly paragraph-383 of the Criminal Manual and Section 76 of the Evidence Act and passed an order to supply certified copy of the original documents on record which were exhibited.
Page 4 of 31 Downloaded on : Sun Sep 17 00:16:59 IST 2023NEUTRAL CITATION C/SCA/8580/2022 ORDER DATED: 04/08/2023 undefined Reliance was placed on Sections 76 and 79 of the Evidence Act.
3.1 It was submitted that photocopies of the documents produced in the aforesaid matters are photocopies of the certified copies of the papers of the lower Court, some are photocopies of the judgments passed by the Hon'ble Apex Court, some are e-mail letters sent to the concerned Court by the writ-applicant/applicant and the citations which are not exhibited, hence the certified copies of such documents which are not exhibited, could not be provided.
3.2 It was submitted that it was orally informed to the writ-
applicant to supply ordinary/simple/kachcha copy of documents of which only photocopies are produced on record, but the writ-applicant herein has chosen not to do the needful. It was submitted that the writ-applicant herein has relied on the Order/Judgments of (1) Spl. C. A. No.14564 of 2014 dated 14.10.2014 (2) Sp. Criminal Application (Quashing) No.778 of Page 5 of 31 Downloaded on : Sun Sep 17 00:16:59 IST 2023 NEUTRAL CITATION C/SCA/8580/2022 ORDER DATED: 04/08/2023 undefined 2016 dated 11.02.2016 (3) Sp. Criminal Application (Quashing) No.2321 of 2013 dated 17.07.2015 (4) Sp. Criminal Application (Quashing) No.3945 of 2015 dated 14.12.2015, but the same are applicable for providing certified copy of the Rojkam only. It is not applicable to the aforesaid application.
3.3 It was submitted that certified copies have been kept ready to be provided as per Report No.7742 dated 3.2.2022 given in the Cr. RA No.164 of 2021, however the writ-
applicant has not collected the same. If the writ-applicant herein were to collect the same, the copy would be provided.
Placing reliance on the aforesaid submissions, it was submitted that all the documents which have been exhibited can be supplied to the writ-applicant, however the photocopies of certain orders passed by the Hon'ble Apex Court and this Court are not supplied to the writ-applicant herein in view of the fact that they would not be authenticated. The respondent would not be able to authenticate the same documents which are photocopies.
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4. Heard the writ-applicant - party-in-person and Ms. Trusha Patel, the learned advocate appearing for the respondent No.2. By way of present writ-application the writ-
applicant herein has challenged the order dated 11.2.2022 passed by the Additional Registrar, in-charge of certified copy Department of Vadodara District Court, the same being against the provisions of Criminal Manual of the Gujarat High Court and also against the provisions of Section 76 of the Indian Evidence Act. The said order reads thus:-
"O R D E R Upon considering the facts of the application of Applicant Vasudev K. Thakkar, he has prayed in the matter of Criminal Revision Application No. 167/2021 that, "It is requested to urgently provide us with the certified copies of following papers on-demand under Section-76 of Indian Evidence Act, i.e., all the papers of the said case which were produced since the beginning, copies of the notices issued by the Court as well as copy of Report of Bailiff or Police about issuance of Notice, copy of Vakalatnama produced in said case as well as Orders. An amount of Rs. 20/- is produced in cash herewith. Copies of these documents are sought for, as they are required for judicial work." The application has been submitted seeking Page 7 of 31 Downloaded on : Sun Sep 17 00:16:59 IST 2023 NEUTRAL CITATION C/SCA/8580/2022 ORDER DATED: 04/08/2023 undefined such relief. Hence, upon considering the said fact, the copy with stamp and signature (certified copy) has been sought (which are) related to the Criminal Case, so it is necessary to consider Chapter-22 of Criminal Manual in which the provisions of para 377 to 390 is regarding copies and certified copies of translation.
Upon considering the facts of the application, as the applicant himself is a party, he has sought the copy as a party of the (judicial) procedure. But the particulars of documents are not stated in present application on behalf of applicant and the certified copies of the entire record has been demanded. Regarding the right to issue Certified copy, we have considered para 373 and section 76 of Evidence Act. Looking to it, if the applicant is not eligible to get the copy, then the applicant should be informed about the reasons for its denial. In the present case, it is not mentioned in the application as to documents of which exhibits have been sought by the applicant. But I am of the opinion that among the record which have been sought by the applicant, the certified copies of exhibited documents as per Rojnama shall be provided.
Further, I am of the opinion that if any document is a photocopy, then certified copy of the same should not be provided. Above that, no certified copy shall be issued upon a certified copy. Hence, the copies of only those documents are Page 8 of 31 Downloaded on : Sun Sep 17 00:16:59 IST 2023 NEUTRAL CITATION C/SCA/8580/2022 ORDER DATED: 04/08/2023 undefined eligible to be issued to the applicant in which the original documents are exhibited in the record. Whereas the applicant could obtain the copies of remaining documents where the original document is produced during the Court proceedings. Thus, the applicant is eligible to get certified copy of only of the exhibited original document in the case of Criminal Revision Application No. 167/2021. Hence, it is ordered to concern Copying Clerk that he shall carry out the procedure to provide the certified copies of only those original documents to the Applicant which have been produced and exhibited in the case of Criminal Revision Application No. 167/2021. Hence, as per the said facts, the instant application is partly allowed.
Dt. 11/02/2022 Sd/- illegible
Vadodara. District Court,
Vadodara."
5. The writ-applicant herein being aggrieved by the
aforesaid order has prayed for a direction to order all the officers looking after certified copy, Department of District Court, Vadodara to immediately provide certified copies of all the papers exhibited as well as not exhibited available with the District Court, Registry in the files of total five cases i.e. Page 9 of 31 Downloaded on : Sun Sep 17 00:16:59 IST 2023 NEUTRAL CITATION C/SCA/8580/2022 ORDER DATED: 04/08/2023 undefined Criminal Revision Application Nos. 164 of 2021, 165 of 2021, 166 of 2021, 167 of 2021 and 168 of 2021, after collecting deficit fees from the writ-applicant herein.
6. In the facts of the present case, it is apposite to refer to Sections 74, 76 and 79 of the Evidence Act which read thus :-
"Section 74 : Public documents : The following documents are public documents :-
(1) Documents forming the acts, or records of the acts- (i) of the sovereign authority, (ii) of official bodies and tribunals, and (iii) of public officers, legislative, judicial and executive, [of any part of India or of the Commonwealth], or of a foreign country;
(2) Public records kept [in any State] of private documents."
"Section 76 : Certified copies of public documents :- Every public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees therefor, together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the Page 10 of 31 Downloaded on : Sun Sep 17 00:16:59 IST 2023 NEUTRAL CITATION C/SCA/8580/2022 ORDER DATED: 04/08/2023 undefined case may be, and such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorized by law to make use of a seal; and such copies so certified shall be called certified copies.
Explanation. - Any officer who, by the ordinary course of official duty, is authorized to deliver such copies, shall be deemed to have the custody of such documents within the meaning of this section."
"Section 79 : Presumption as to genuineness of certified copies :- The Court shall presume [to be genuine] every document purporting to be a certificate, certified copy, or other document, which is by law declared to be admissible as evidence of any particular fact and which purports to be duly certified by any officer [of the Central Government or of a State Government, or by any officer [in the State of Jammu and Kashmir] who is duly authorized thereto by the Central Government]:
Provided that such document is substantially in the form and purports to be executed in the manner directed by law in that behalf. The Court shall also presume that any officer by whom any such document purports to be signed or certified held, when he signed it, the official character which he claims in such paper."
7. Considering the aforesaid provisions of the Evidence Act, Page 11 of 31 Downloaded on : Sun Sep 17 00:16:59 IST 2023 NEUTRAL CITATION C/SCA/8580/2022 ORDER DATED: 04/08/2023 undefined the writ-applicant herein was provided the following by the respondent No.1 in the aforesaid applications :-
(1) Cr. RA No.164/2021 Documents of which certified copies have been kept ready:
1. Ex.1 (Original Plaint) .
2. Ex.2 (Vakilpatra).
3. Ex.3 (Adjournment Application).
4. Ex. 4 (The Judgment dated22.02.2021, of the Hon'ble Supreme Court of India recorded in Civil Appeal No. 2014/2021, to consider the "Law" as per Article 141 of the Constitution of India).
Documents Not Provided :
1. Being Certified Copy of Ex.2 of the Court of Shri C.R. Sharma Saheb, JMFC Court, Vadodara. (Ex . 2 is an application for issuing Summons and order passed below the said application, dated 29.09.2021 in Criminal Inquiry No. 620/2019).
2. Being Photocopy Copy of Ex.4 of Lower Court. (Ex. 4 is an application given by the Complainant - Vasudev Thakkar in Criminal Inquiry No. 620/2019).
3. Ex. 5, Application given by Complainant Vasudev Page 12 of 31 Downloaded on : Sun Sep 17 00:16:59 IST 2023 NEUTRAL CITATION C/SCA/8580/2022 ORDER DATED: 04/08/2023 undefined Thakkar on 29.09.2021 to decide Ex. 4 application in Criminal Inquiry No. 620/2019.
4. Being Photocopy Copy of Ex.1 of Lower Court.
(Application below Ex.1, dated 07.11.2019 wherein Inquiry No. 620/2019, dated 16.11.2019).
5. Photocopy Copy of Ex.4 being Judgment of Civil Appeal No.2014/2011.
NOTE :
Petitioner can apply and get certified copies of documents enlisted from sr.no. 1to 5 from the record of Criminal Inquiry No. 620/2019
6. Notices of Court which were not Exhibited.
(2) Cr. RA No.165/2021 Documents to be Provided:
1. Ex.1 being Original Plaint.
2. Ex.2 (Vakilpatra).
3. Ex.3 (The Judgment dated 22.02.2021, of the Hon' ble Supreme Court of India recorded in Civil Appeal No. 2014/2021, to consider the "Law" as per Article 141 of the Constitution of India).
4. Ex . 4 (Application given by the applicant Vasudev K. Page 13 of 31 Downloaded on : Sun Sep 17 00:16:59 IST 2023 NEUTRAL CITATION C/SCA/8580/2022 ORDER DATED: 04/08/2023 undefined Thakkar dated 24.01.2022 and order below the same).
5. Ex. 5 (Copy of Email dated 02.02.2022).
Documents not Provided:
1. Being Certified Copy of Ex.4 of the Court of Shri C.R. Sharma Saheb, JMFC Court, Vadodara. (Ex. 4 is an application for issuing Summons and order passed below the said application, dated 29.09.2021 in Criminal Inquiry No. 50/2021).
2. Being Photocopy Copy of Ex.5 of Lower Court.
(Application dated 22.09.2021 filed by the Complainant - Vasudev Thakkar for proceeding with the inquiry as per the provisions of the Hon' ble High Court of Gujarat Cash Flow Management Rules, 2016).
3. Being Photocopy Copy of Ex. 6 of Lower Court. (Application dated 29.09.2021 filed by the Complainant - Vasudev Thakkar to D. I. the application Ex.5).
4. The photocopy copy of Criminal Inquiry No. 50/2021:
Ex.1: filed by the Complainant - Vasudev Thakkar.
5. Being Copy of Email dated 25.01.2022 forwarded by applicant Vasudev Thakkar in the court of Shri UnadkatSaheb, Vadodara and the same was not Exhibited.
6. Notice was not Given.
Page 14 of 31 Downloaded on : Sun Sep 17 00:16:59 IST 2023 NEUTRAL CITATION C/SCA/8580/2022 ORDER DATED: 04/08/2023 undefined (3) Cr. RA No.166/2021 Documents to be Provided : 1. Ex.1 being Original Plaint.
2. Ex. 2 (The Judgment dated 22.02.2021, of the Hon'ble Supreme Court of India recorded in Civil Appeal No. 2014/2021, to consider the "Law" as per Article 141 of the Constitution of India).
3. Ex.3 (Vakilpatra).
4. Ex. 4 (Application filed by Opponent No.1 for submitting Written Objections).
Documents not Provided :
1. Being Certified Copy of Ex.5 of the Court of Shri C.R. Sharma Saheb, JMFC Court, Vadodara. (Application dated 22.09.2021 filed by the Complainant - Vasudev Thakkar for proceeding with the inquiry as per the provisions of the Hon' ble High Court of Gujarat Cash Flow Management Rules, 2016).
2. Being Photocopy Copy of Ex.6 of Lower Court. (Application dated 29.09.2021 filed by the Complainant - Vasudev Thakkar to D.I. the application Ex.5).
3. Being Photocopy Copy of Ex. 7 of Lower Court.
4. Ex.1. The photocopy copy of Criminal Inquiry No. Page 15 of 31 Downloaded on : Sun Sep 17 00:16:59 IST 2023 NEUTRAL CITATION C/SCA/8580/2022 ORDER DATED: 04/08/2023 undefined 43/2021 filed by the Complainant - Vasudev Thakkar on 20.08.2020.
5. Being Xerox Copy of SBI Identity Card of Kumar Atul Chandra which was not Exhibited.
6. Being Xerox Copy of Email Dated 29.01.2022.
7. Being Xerox Copy of Email Dated 24.01.2022.
8. Being Xerox Copy of Email Dated 24.01.2022.
9. Being Xerox Copy of Email Dated 28.01.2022.
10. Being Xerox Copy of Email Dated 24.01.2022.
11. Being Xerox Copy of Notices dated 11.12.2021 (Total Nos.10).
(4) Cr. RA No.167/2021 Documents to be Provided : 1. Ex.1 being Original Plaint. 2. Ex.2 (Vakilpatra). 3. Ex. 3 (Vakilpatra). 4. Ex. 4 (Vakilpatra). 5. Ex. 5 (Vakilpatra).
6. Ex. 6 (The Judgment dated 22.02.2021, of the Hon'ble Supreme Court of India recorded in Civil Appeal No. 2014/2021, to consider the "Law " as per Article 141 of the Constitution of India).
Page 16 of 31 Downloaded on : Sun Sep 17 00:16:59 IST 2023NEUTRAL CITATION C/SCA/8580/2022 ORDER DATED: 04/08/2023 undefined Documents not Provided :
1. Being Certified Copy of Ex.5 of the Court of Shri C.R. Sharma Saheb, JMFC Court, Vadodara. (Application dated 22.09.2021 filed by the Complainant - Vasudev Thakkar for proceeding with the inquiry as per the provisions of the Hon' ble High Court of Gujarat Cash Flow Management Rules, 2016).
2. Being Photocopy Copy of Ex. 6 of Lower Court. (Application dated 29.09.2021 filed by the Complainant - Vasudev Thakkar to D.I. the application Ex.5).
3. Being Photocopy Copy of Ex.7 of Lower Court.
4. Ex.1. The photocopy copy of Criminal Inquiry No. 41/2021 filed by the Complainant Vasudev Thakkar on 15.03.2021.
5. Notice (Total Nos. 6, which have not been Exhibited).
(5) Cr. RA No.168/2021 Documents to be Provided : 1. Ex.1 being Original Plaint. 2. Ex. 2 (Vakilpatra). 3. Ex. 3 (Vakilpatra). 4. Ex. 4 (Vakilpatra). 5. Ex. 5 (Vakilpatra). Page 17 of 31 Downloaded on : Sun Sep 17 00:16:59 IST 2023 NEUTRAL CITATION C/SCA/8580/2022 ORDER DATED: 04/08/2023 undefined
6. Ex. 6 (The Judgment dated 22.02.2021, of the Hon'ble Supreme Court of India recorded in Civil Appeal No. 2014/2021, to consider the "Law" as per Article 141 of the Constitution of India).
Documents not Provided :
1. Being Certified Copy of Ex.5 of the Court of Shri C. R. Sharma Saheb, JMFC Court, Vadodara. (Application dated 22.09.2021 filed by the Complainant - Vasudev Thakkar for proceeding with the inquiry as per the provisions of the Hon' ble High Court of Gujarat Cash Flow Management Rules, 2016).
2. Being Photocopy Copy of Ex. 6 of Lower Court. (Application dated 29.09.2021 filed by the Complainant - Vasudev Thakkar to D. I. the application Ex.5).
3. Being Photocopy Copy of Ex.7 of Lower Court.
4. Ex. 1. The photocopy copy of Criminal Inquiry No. 42/2021 filed by the Complainant Vasudev Thakkar on 04.08.2020.
5. Notice (Total Nos.6, which have not been Exhibited). Note : In the said Report Nos. 7742 to 7746 dated 03.02.2022, certified copy of Rojkam have not been asked for, however in the Report Nos . 377 to 381, Dated 13.04.2022, the certified copy of Rojkam have been asked for, which can be provided.
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8. The present writ-applicant - party-in-person invoking Section 76 of the Indian Evidence Act, 1982 applied for certified copy of papers of Criminal Revision Applications No.164 to 168 of 2021. The respondent herein supplied certified copies of the documents which are public documents.
Taking into consideration the provisions of Chapter XXII, more particularly Paragraph-383 of the Criminal Manual and Section 76 of the Indian Evidence Act the respondent No.1 passed an order to supply certified copies of original documents on record which were exhibited.
9. At this stage, it is apposite to refer to the ratio as laid down by the Hon'ble Supreme Court in the case of Arjun Panditrao Khotkar vs. Kailash Kushanrao Gorantyal and Ors., reported in AIR 2020 SC 4908, paragraphs 28, 40, 41, 42, 76, 77 and 78 read thus :-
"28. Section 6(1), in essence, maintains the dichotomy between proof by 'primary' and 'secondary' evidence - proof by production of the 'document' itself being primary evidence, and proof by production of a copy of that document, as authenticated, being secondary evidence. Section 6(5), which Page 19 of 31 Downloaded on : Sun Sep 17 00:16:59 IST 2023 NEUTRAL CITATION C/SCA/8580/2022 ORDER DATED: 04/08/2023 undefined gives teeth to the person granting the certificate mentioned in Section 5(4) of the Act, by punishing false statements wilfully made in the certificate, has not been included in the Indian Evidence Act. These sections have since been repealed by the Civil Evidence Act of 1995 (UK), pursuant to a UK Law Commission Report published in September, 1993 (Law Com. No. 216), by which the strict rule as to hearsay evidence was relaxed, and hearsay evidence was made admissible in the circumstances mentioned by the Civil Evidence Act of 1995. Sections 8, 9 and 13 of this Act are important, and are set out hereinbelow:
"8. Proof of statements contained in documents.
(1) Where a statement contained in a document is admissible as evidence in civil proceedings, it may be proved-
(a) by the production of that document, or
(b) whether or not that document is still in existence, by the production of a copy of that document or of the material part of it, authenticated in such manner as the court may approve.
(2) It is immaterial for this purpose how many removes there are between a copy and the original.
9. Proof of records of business or public authority.
(1) A document which is shown to form part of the records of a business or public authority may be received in evidence in Page 20 of 31 Downloaded on : Sun Sep 17 00:16:59 IST 2023 NEUTRAL CITATION C/SCA/8580/2022 ORDER DATED: 04/08/2023 undefined civil proceedings without further proof.
(2) A document shall be taken to form part of the records of a business or public authority if there is produced to the court a certificate to that effect signed by an officer of the business or authority to which the records belong. For this purpose-
(a) a document purporting to be a certificate signed by an officer of a business or public authority shall be deemed to have been duly given by such an officer and signed by him;
and
(b) a certificate shall be treated as signed by a person if it purports to bear a facsimile of his signature.
(3) The absence of an entry in the records of a business or public authority may be proved in civil proceedings by affidavit of an officer of the business or authority to which the records belong.
(4) In this section-
"records" means records in whatever form; "business" includes any activity regularly carried on over a period of time, whether for profit or not, by any body (whether corporate or not) or by an individual;
"officer" includes any person occupying a responsible position in relation to the relevant activities of the business or public Page 21 of 31 Downloaded on : Sun Sep 17 00:16:59 IST 2023 NEUTRAL CITATION C/SCA/8580/2022 ORDER DATED: 04/08/2023 undefined authority or in relation to its records; and "public authority" includes any public or statutory undertaking, any government department and any person holding office under Her Majesty.
(5) The court may, having regard to the circumstances of the case, direct that all or any of the above provisions of this section do not apply in relation to a particular document or record, or description of documents or records."
Section 13 of this Act defines "document" as follows:
"document" means anything in which information of any description is recorded, and "copy", in relation to a document, means anything onto which information recorded in the document has been copied, by whatever means and whether directly or indirectly;"
40. As a matter of fact, Section 165 of the Evidence Act empowers a Judge to order production of any document or thing in order to discover or obtain proof of relevant facts. Section 165 of the Evidence Act states as follows:
"Section 165. Judge's power to put questions or order production.- The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their Page 22 of 31 Downloaded on : Sun Sep 17 00:16:59 IST 2023 NEUTRAL CITATION C/SCA/8580/2022 ORDER DATED: 04/08/2023 undefined agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question.
Provided that the judgment must be based upon facts declared by this Act to be relevant, and duly proved:
Provided also that this section shall not authorize any Judge to compel any witness to answer any question or to produce any document which such witness would be entitled to refuse to answer or produce under sections 121 to 131, both inclusive, if the question were asked or the document were called for by the adverse party; nor shall the Judge ask any question which it would be improper for any other person to ask under section 148 or 149; nor shall he dispense with primary evidence of any document, except in the cases hereinbefore excepted.
41. Likewise, under Order XVI of the Civil Procedure Code, 1908 ("CPC") which deals with 'Summoning and Attendance of Witnesses', the Court can issue the following orders for the production of documents:
"6. Summons to produce document.-Any person may be summoned to produce a document, without being summoned to give evidence; and any person summoned merely to produce a document shall be deemed to have complied with the summons if he causes such document to be produced Page 23 of 31 Downloaded on : Sun Sep 17 00:16:59 IST 2023 NEUTRAL CITATION C/SCA/8580/2022 ORDER DATED: 04/08/2023 undefined instead of attending personally to produce the same.
7. Power to require persons present in Court to give evidence or produce document.-Any person present in Court may be required by the Court to give evidence or to produce any document then and there in his possession or power.
xxx xxx xxx
10. Procedure where witness fails to comply with summons.-
(1) Where a person has been issued summons either to attend to give evidence or to produce a document, fails to attend or to produce the document in compliance with such summons, the Court- (a) shall, if the certificate of the serving officer has not been verified by the affidavit, or if service of the summons has affected by a party or his agent, or (b) may, if the certificate of the serving officer has been so verified, examine on oath the serving officer or the party or his agent, as the case may be, who has effected service, or cause him to be so examined by any Court, touching the service or nonservice of the summons.
(2) Where the Court sees reason to believe that such evidence or production is material, and that such person has, without lawful excuse, failed to attend or to produce the document in compliance with such summons or has intentionally avoided service, it may issue a proclamation requiring him to attend to give evidence or to produce the document at a time and place to be named therein; and a copy of such proclamation Page 24 of 31 Downloaded on : Sun Sep 17 00:16:59 IST 2023 NEUTRAL CITATION C/SCA/8580/2022 ORDER DATED: 04/08/2023 undefined shall be affixed on the outer door or other conspicuous part of the house in which he ordinarily resides.
(3) In lieu of or at the time of issuing such proclamation, or at any time afterwards, the Court may, in its discretion, issue a warrant, either with or without bail, for the arrest of such person, and may make an order for the attachment of his property to such amount as it thinks fit, not exceeding the amount of the costs of attachment and of any fine which may be imposed under rule 12:
Provided that no Court of Small Causes shall make an order for the attachment of immovable property."
42. Similarly, in the Code of Criminal Procedure, 1973 ("CrPC"), the Judge conducting a criminal trial is empowered to issue the following orders for production of documents:
"91. Summons to produce document or other thing.- (1) Whenever any Court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order.Page 25 of 31 Downloaded on : Sun Sep 17 00:16:59 IST 2023
NEUTRAL CITATION C/SCA/8580/2022 ORDER DATED: 04/08/2023 undefined (2) Any person required under this section merely to produce a document or other thing shall be deemed to have complied with the requisition if he causes such document or thing to be produced instead of attending personally to produce the same.
(3) Nothing in this section shall be deemed- (a) to affect sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), or the Bankers' Books Evidence Act, 1891 (13 of 1891), or (b) to apply to a letter, postcard, telegram or other document or any parcel or thing in the custody of the postal or telegraph authority."
"349. Imprisonment or committal of person refusing to answer or produce document.-If any witness or person called to produce a document or thing before a Criminal Court refuses to answer such questions as are put to him or to produce any document or thing in his possession or power which the Court requires him to produce, and does not, after a reasonable opportunity has been given to him so to do, offer any reasonable excuse for such refusal, such Court may, for reasons to be recorded in writing, sentence him to simple imprisonment, or by warrant under the hand of the Presiding Magistrate or Judge commit him to the custody of an officer of the Court for any term not exceeding seven days, unless in the meantime, such person consents to be examined and to answer, or to produce the document or thing and in the event of his persisting in his refusal, he may be dealt with Page 26 of 31 Downloaded on : Sun Sep 17 00:16:59 IST 2023 NEUTRAL CITATION C/SCA/8580/2022 ORDER DATED: 04/08/2023 undefined according to the provisions of section 345 or section 346."
76. Section 136 which confers a discretion upon the Judge to decide as to the admissibility of evidence reads as follows:
136. Judge to decide as to admissibility of evidence. --
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.
If the relevancy of one alleged fact depends upon another alleged fact being first proved, the Judge may, in his discretion, either permit evidence of the first fact to be given before the second fact is proved, or require evidence to be given of the second fact before evidence is given of the first fact.
77. There are three parts to Section 136. The first part deals with the discretion of the Judge to admit the evidence, if he thinks that the fact sought to be proved is relevant. The Page 27 of 31 Downloaded on : Sun Sep 17 00:16:59 IST 2023 NEUTRAL CITATION C/SCA/8580/2022 ORDER DATED: 04/08/2023 undefined second part of Section 136 states that 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. But this rule is subject to a small concession, namely, that if the party undertakes to produce proof of the last mentioned fact later and the Court is satisfied about such undertaking, the Court may proceed to admit evidence of the first mentioned fact. The third part of Section 136 deals with the relevancy of one alleged fact, which depends upon another alleged fact being first proved. The third part of Section 136 has no relevance for our present purpose.
78. Illustration (b) under Section 136 provides an easy example of the second part of Section 136. Illustration (b) reads as follows:
(b) It is proposed to prove, by a copy, the contents of a document said to be lost. The fact that the original is lost must be proved by the person proposing to produce the copy, before the copy is produced."
10. Considering the facts of the present case the reliefs as prayed for by the writ-applicant herein, this Court is inclined to pass the following order :-
Page 28 of 31 Downloaded on : Sun Sep 17 00:16:59 IST 2023NEUTRAL CITATION C/SCA/8580/2022 ORDER DATED: 04/08/2023 undefined 10.1 No interference is called for to exercise extraordinary jurisdiction under Article 226 of the Constitution of India in the impugned order which is subject matter of challenge dated 11.02.2022 passed by Mr. S. H. Belim, Additional Registrar, in-charge of certified copy department of Vadodara District Court.
10.2 The documents on which certified copies are available with the certified copy department of District Court, Vadodara, and the said documents which are duly exhibited are ready with the respondent No.1 and it is open for the writ-applicant herein to collect the same. The certified copies of executable documents in the proceedings before the Sessions Court as prayed are made available.
10.3 In accordance with the ratio as laid down by the Hon'ble Apex Court Arjun Panditrao Khotkar (Supra) as referred above, it is open for the writ-applicant herein to resort to the provisions of Evidence Act for production of the Page 29 of 31 Downloaded on : Sun Sep 17 00:16:59 IST 2023 NEUTRAL CITATION C/SCA/8580/2022 ORDER DATED: 04/08/2023 undefined record/documents from the concerned Court by invoking the provisions of the Evidence Act.
10.4 Considering the prayers as prayed for in (2), (3) and (4), this Court is not inclined to exercise extraordinary jurisdiction under Article 226 of the Constitution of India. The same being in nature of public interest. In the opinion of this Court, the writ-applicant herein would be entitled to prayers under writ jurisdiction only where the legal right accrues in favour of the writ-applicant herein under the provisions of the Act.
10.5 It is open for the writ-applicant herein to approach the concerned Court for the remaining documents where the original documents are produced during the Court proceedings.
10.6 Certified copy of the judgment or order can be made available only by the Court concerned where the judgment/order is pronounced or signed or order is passed and signed. No other Court can provide certified copy of the judgment or even copy of the order.Page 30 of 31 Downloaded on : Sun Sep 17 00:16:59 IST 2023
NEUTRAL CITATION C/SCA/8580/2022 ORDER DATED: 04/08/2023 undefined
11. With the aforesaid, the present writ-application is disposed of with the aforesaid directions.
(VAIBHAVI D. NANAVATI,J) K.K. SAIYED Page 31 of 31 Downloaded on : Sun Sep 17 00:16:59 IST 2023