State Of Gujarat vs Visheshbhai Kali Chhaganbhai ... on 7 November, 2014

[Cites 27, Cited by 2]

Gujarat High Court

State Of Gujarat vs Visheshbhai Kali Chhaganbhai ... on 7 November, 2014

1. By this application under Article 227 of the Constitution of India, the State of Gujarat seeks to challenge the legality and validity of the order dated 8 th April, 2013 passed below exhibit- 91 in Sessions Case No.2 of 2012 by the learned Additional Sessions Judge, Tapi at Vyara and order dated 6 th June, 2013 passed by the learned Additional Sessions Judge, Tapi at Vyara below exhibit-103 in Sessions Case No.2 of 2012.

2. It appears that the respondent-original accused has been charged with the offence punishable under sections 364(A), 302 and 201 of the Indian Penal Code. In the course of the investigation, the police got few statements of the witnesses recorded under section 164 of the Code of Criminal Procedure through the learned Judicial Magistrate, First Class. In the course of the trial, an application exhibit-103 was filed by the State praying to issue summons for the purpose of examining the learned Judicial Magistrate, First Class who had recorded the confessional statements of those witnesses under section 164 of the Code of Criminal Procedure.

3. It appears that the learned Additional Sessions Judge rejected such a prayer on the ground that there was no need to examine the learned Judicial Magistrate, First Class since the witnesses whose confessional statements were recorded under section 164, had supported the case of the prosecution. It is not in dispute as recorded by the learned Additional Sessions Judge himself that those witnesses were not declared hostile and, therefore, there was no question of contradicting those witnesses with their confessional statements.

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R/SCR.A/141/2014 JUDGMENT

4. In my view, the order passed by the learned Additional Sessions Judge is correct. It is well settled that a confessional statement under section 164 of the Code of Criminal Procedure could be used for the purpose of corroboration as well as for the purpose of contradiction unlike a police statement recorded under section 161 of the Code of Criminal Procedure which could be used only for the purpose of contradiction. To put in other words, a statement of witness under section 164 of the Code of Criminal Procedure is not substantive evidence, but; is a former statement made before an authority legally competent to investigate the fact. Such a statement can be used either for corroboration of the testimony of a witness under section 157 or for contradiction thereof under section 145 of the evidence Act.

5. The confessional statements could have been admitted into evidence and exhibited without the Magistrate being examined in the court. In Kashmira Singh v. State of Madhya Pradesh, AIR 1952 SC 159 their lordships observed thus:-

"The prosecution were criticised for not calling the Magistrate who recorded the confession as a witness. We wish to endorse the remarks of their Lordships of the Privy Counsel in Nazir Ahmed v. King Emperor, AIR 1936 PC 253 (2) at p. 258, regarding the undesirability of such a practice. In our opinion, the Magistrate was rightly not called and it would have been improper and undesirable for the prosecution to have acted otherwise."

6. The reason why statement recorded under section 164 is not substantive evidence is that the defense has no opportunity to cross-examine the witnesses whose statements have been recorded under section 164, but the same can Page 3 of 10 R/SCR.A/141/2014 JUDGMENT certainly be used for contradiction or corroboration of witnesses who made it. The correct use of the statement recorded under section 164 is that it can be used by defense for the purpose of cross-examination of witnesses who made the said statements. It is always open to the defense to show that the statement so recorded was not correct or that it was contradictory to the statements made by the witnesses at a trial or that the witnesses rescind from their statements earlier recorded under section 164. (See Ram Kishan Singh v. Harmit Kaur & Ors., AIR 1972 SC 468)

7. Before parting, I would like to clear one misconception of law as noticed by me in the order passed by the learned Additional Sessions Judge. While rejecting the application exhibit-91, the learned Judge has placed reliance on the provisions of section 89 of the Evidence Act. Section 89 of the Evidence Act reads thus:

"Presumption as to due execution, etc., of documents not produced:- The Court shall presume that every document, called for and not produced after notice to produce, was attested, stamped and executed in the manner required by law."

8. I may consider the effect of the provisions of section 89 of the Evidence Act by reference to some other relevant sections. The rule of the Evidence Act which is enunciated in S. 61 is that the contents of documents may be proved either by primary or by secondary evidence. In the normal course, the original document is intended to be produced before the Court in order to prove its contents. But in certain specified cases, secondary evidence is permissible.

"Secondary evidence" has been defined by S.63 of the Page 4 of 10 R/SCR.A/141/2014 JUDGMENT Act. This expression means and includes certified copies given "under the provisions hereinafter contained"; copies made from the original by mechanical process which in themselves insure the accuracy of the copy, and copies compared with such copies; and other documents to which the section refers.

Under S.65, secondary evidence may be given of the existence, condition or contents of a documents in the cases mentioned in that section, S.64 having provided that documents must be proved by primary evidence "except in the cases hereinafter mentioned".

Now, the exceptional cases, in which secondary evidence may be given of the existence, condition or contents of a document, are specified in cls.(a) to (g) of S.65.

This clause provides that, when the original is shown or appears to be in the possession or power of the person against whom the documents is sought to be proved, or of any person out of reach of, or not subject to the process of the Court; or of any person legally bound to produce it; and when, after the notice mentioned in S.66, such person does not produce it, secondary evidence may be given of the existence, condition or contents of a document.

Section 66 deals with the rules as to notice to produce certain documents and under this section secondary evidence of the contents of documents referred to in S.65, cl.(a), shall not be given unless the party proposing to give such secondary evidence has previously given to the party in show possession or power the document is, or to his attorney or pleader, such notice to produce it as is prescribed by law; and if no notice is Page 5 of 10 R/SCR.A/141/2014 JUDGMENT prescribed by law, then such notice as the Court considers reasonable under the circumstances of the case.

The position, therefore, is that, where a party wants to produce a copy of a document on the ground that the original is in the possession or power of his opponent, he is required to give notice to the opponent under S.66 calling upon him to produce the original document which is in his possession or power. When notice is thus served on the opponent, it would be his duty to produce the document before the Court. If despite the notice, the opponent fails to produce the document, then under the provisions of S.65(a) it would be open to the party to produce a certified copy of the said document.

It would thus be clear that, before these provisions are pressed into service and a certified copy is allowed to be produced by a party, it would be necessary for the Court to be satisfied that the original document is in the possession or power of the person or persons mentioned in S.65(a) of the Evidence Act, that notice has been given to the person or person to produce the document, and that despite the notice the person or persons have failed to produce the document.

It is in reference to such cases that S.89 purports to draw the presumption. It deals with cases where a document is called for and not produced, and that would apply to cases falling under S.65(a) and S.66, Evidence Act. There are several exceptional cases in which secondary evidence is permissible to be produced under S.65; but in none of the cases other than those falling under cl.(a) of that section is notice required to be given under S.66 of the Act.

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R/SCR.A/141/2014 JUDGMENT If, for instance, the original document has been destroyed or lost, or when the party offering evidence of its contents cannot for any other reason nor arising from his own default or neglect produce it in reasonable time, the party is entitled to produce secondary evidence under S.65, Cl.(c); and yet, before he is allowed to produce secondary evidence, he is not required by S.66 to give any notice to any party whatever.

All that he has to prove is that the original has been destroyed or lost, or that for any other reason not arising from his own default or neglect he would not be able to produce the original in reasonable time. Prima facie in such cases the provisions of S.89 may not be applied.

The condition precedent for the application of S.89 appears to be that the original document must have been called for and has not been produced after notice to produce it is given, and these conditions unequivocally suggest that the cases in which the statutory presumption under S.89 can be raised are cases which fall under S.65(a) and S.66, Evidence Act.

The principle underlying the provisions of S.89 is sometimes described as the "necessity" principle. If a party is in possession of a document, or it is shown that the document is In his power, and despite the notice given to him to produce that document he refuses to produce that document, law provides that the conduct of the party justifies an inference being drawn against him, and in that sense the principle of necessity is invoked and Courts are authorised to assume that the document which has not been produced must have been Page 7 of 10 R/SCR.A/141/2014 JUDGMENT properly attested, stamped and executed in the manner required by law.

While considering the presumption which arises under S.89, it may be relevant to remember that once presumption is drawn under S.89, it cannot be easily rebutted by the production of the original document at a later stage. Section 164 of the Evidence Act lays down that, when a party refuses to produce a document which he has had notice to produce, he cannot afterwards use the document as evidence without the consent of the other party or the order of the Court.

It would be possible to compare the presumption which can statutorily be raised under S.83 with the presumption which is permissible to be raised under S.114, Evidence Act, ill.

(g). If a person fails to produce a document in his possession, an inference can be drawn under S.114 that such person refuses to produce the document, because, if produced, it would be against his interests.

On similar lines and for similar reasons S.89 authorises the presumption to be drawn in cases to which the said section applies, that the original document is not produced because it would, if produced, show that it was properly attested, stamped and executed in the manner required by law.

When a party is allowed to produce secondary evidence under S.65, all that the section permits to be done is to enable the party to prove the contents of the document by the production of the secondary evidence. That by itself would not be of decisive importance to the party because before the contents are allowed to be proved the execution of the Page 8 of 10 R/SCR.A/141/2014 JUDGMENT document has got to be established according to law; and in the manner of proving the proper and valid execution of document, Ss. 89 and 90 provide for raising certain artificial presumptions. (vide Kashibhai Martand v. Vinayak Ganesh & Ors., AIR 1956 Bombay 65).

9. Thus from the above, it could easily be said that section 89 of the Evidence Act has no application as sought to be relied upon by the learned Additional Sessions Judge.

10. It is section 80 of the Evidence Act which would be applicable to the facts of the present case. Section 80 of the Evidence Act reads thus:

"Presumption as to documents produced as record of evidence,- Whenever any document is produced before any Court, purporting to be a record or memorandum of the evidence, or of any part of the evidence, given by a witness in a judicial proceeding or before any officer authorized by law to take such evidence, or to be a statement or confession by any prisoner or accused person, take in accordance with law, and purporting to be signed by any Judge or Magistrate, or by any such officer as aforesaid, the Court shall presume-

that the document is genuine, that any statements as to the circumstances under which it was taken, purporting to be made by the person signing it, are true, and that such evidence, statement or confession was duly taken."

11. Section 80 of the Evidence Act makes the examination of the Magistrate unnecessary. It authorizes the Court to presume that the document is genuine, that any statement as to the circumstances under which it was taken are true and that such confession was truly taken in accordance with law.

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R/SCR.A/141/2014 JUDGMENT (See Madi Ganga v. State of Orissa, 1981 Criminal Law General

628)

12. Mr. H.S. Soni, the learned Additional Public Prosecutor, has also drawn my attention to the fact that the trial is now at the stage of recording of the further statement of the accused under section 313 of the Code of Criminal Procedure.

10. For the forgoing reasons, I do not find any good ground to interfere with the two orders passed by the Trial Court. In the result, this application fails and is hereby rejected.

(J.B.PARDIWALA, J.) Vahid Page 10 of 10

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Gujarat High Court