Bombay High Court
Dr Sanjay Gajanan Chivate vs Dr Ramesh Yadu Kadam And Anr on 20 November, 2015
Bench: S.S. Jadhav
1 2085.13 wp
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE SIDE JURISDICTION
CRIMINAL WRIT PETITION NO. 2085 OF 2013
Sanjay Gajanan Chivate .....Petitioner
V/s.
Dr. Ramesh Yadu Kadam and another ....Respondents
Mr. Uday Warunjikar Advocate for Petitioner
Mr. S. V. Kotwal Advocate for respondent no. 1
Mr. D. R. More APP for the State
CORAM : SMT. SADHANA S. JADHAV, J.
RESERVED ON: SEPTEMBER 11, 2015.
PRONOUNCED ON: NOVEMBER 20, 2015
PC :
Heard.
2) Rule. Rule made returnable forthwith with the consent of parties.
3) Petitioner herein questions the correctness and validity of the order
dated 29/01/2013 passed by Additional Sessions Judge, Satara in Criminal
Revision Application No. 15 of 2012.
4) Petitioner herein happens to be appropriate authority under the Pre-
conception and Pre-natal Diagnostic Techniques (Prohibition of Sex
Selection) Act, 1994 (Hereinafter referred as PCPNDT Act). Petitioner herein
filed a complaint against present respondent i.e. Dr. R. Y. Kadam who runs
Mukta Hospital at Satara Road Taluka Koregaon. It is alleged that appropriate
ism
2 2085.13 wp
authority had reliably learnt that Dr. R. Y. Kadam i.e. present respondent is
conducting his profession in utter violation of provisions of PCPNDT Act,
1994. That he has indulged into the activities such as detection of sex of the
foetus and disclosing the same to the pregnant women. That with the aid and
assistance of Advocate Varsha Deshpande (Member of District Advisory
Committee). Petitioner had decided to verify the genuineness of the
information received by him. That one pregnant woman Smt. Tanubai
Sambhaji Madane was contacted by Advocate Varsha Deshpande. She was
posted as decoy witness.
5) On 20/01/2015 at about 3.30 p.m., Smt. Tanubai Madane had been to
Mukta Hospital and informed the doctor that she wants to determine the sex
of the foetus. That Tanubai was accompanied by Smt. Baidabai Madane and
Smt. Maya Pawar as her relatives. She had been examined by the respondent
herein i.e. Dr. R. Y. Kadam. After undergoing the sonography, she was
informed that the foetus is of a female. It is alleged that Dr. kadam had
demanded Rs. 2,000/- for sonography. The amount was paid. Dr. Kadam had
not issued a receipt towards acceptance of professional fees. Soon thereafter
at about 6.00 p.m, premises of Mukta Hospital were raided between 6.00 p.m.
ism
3 2085.13 wp
to 10.00 p.m. Statement of Tanubai was recorded. Similarly the statements of
Smt. Baidabai Madane and Maya Pawar were also recorded. The appropriate
authority had also recorded the statement of Dr. R. Y. kadam along with his
O.P.D. attendant Sou. Sangita Raut. Complainant had given the list of
witnesses which includes Advocate Varsha Deshpande.
6) The case was registered as R.C.C. No. 6 of 2005. On 24/01/2005,
Judicial Magistrate First Class, Koregaon had issued process against
accused under sections 5 (2), 19 (4) and section 29 (1) (2) of PCPNDT
Act.
7) Learned Magistrate had recorded evidence before charge.
Complainant was examined as P.W. 1. He has deposed before the Court
that he had the information that Dr. Kadam used to take sonography
tests and thereafter disclose the sex of the foetus to the pregnant
women. Before conducting the sting operation, affidavit of Tanubai was
taken before Medical Superintendent of Rural Hospital with an
undertaking that she would not abort her foetus even if it is of a
female. That she has accepted 40 currency notes of Rs. 50/-
denomination for paying the doctor. He deposed in accordance with the
ism
4 2085.13 wp
complaint. At the time of raid, sonography register and consent form
was seized. Complainant had sealed the sonography machine
forthwith. According to the complainant, register did not show the
entry as far as Tanubai Madane was concerned. Complainant has
further deposed before the Court that he had recorded the statements
of Tanubai Madane. It was noticed that there was no receipt book
regarding receipt of amount given by the patient for sonography. P.W. 1
had recorded the statements of persons concerned in accordance with
law. It appears from the deposition of P.W. 1 that Tanubai Madane was
accompanied by Advocate M/s Varsha Deshpande when she had been
to the hospital for the purpose of terminating her pregnancy and even
thereafter.
8) According to P.W. 1 accused had disclosed to P.W. 1 that he had
come from Satara at 4.00/4.30 p.m. P. W. 1 has stated before the Court
that Advocate Varsha Deshpande and her colleague and relatives had
come and accused had submitted before them that the statement is in
his own hand writing. 40 currency notes of Rs. 50/- were seized from
the spot. After recording the evidence of the complainant, learned
ism
5 2085.13 wp
Judicial Magistrate First Class had drawn the presumption that prima
facie case is made out for framing the charges and accordingly order
was passed on 02/09/2011. Since both the applications have not been
challenged before the Higher Court, the prayers in the application
before the Magistrate have become final.
9) Prosecution examined the complainant Dr. Sanjay Gajanan
Chiwate after framing of charge. He deposed before the Court that he
had received secret information that Dr. Kadam is indulging into
malpractices of disclosing the sex of the foetus to the pregnant women.
It appears that he had sought help from Advocate Varsha Deshpande
who is working as a member of District Advisory Committee under the
PCPNDT Act. They had approached Tanubai Madane. An affidavit of
Tanubai was taken before medical Superintendent Rural Hospital
Waduj. She had given an undertaking that in the eventuality the sex of
the foetus is determined as that of a female, she would not abort her
foetus. She was given currency notes of Rs. 50/- to be paid towards the
fees. Affidavit of Tanubai was shown to the witness. He had identified
his signature and the same was marked as Exhibit 30.
ism
6 2085.13 wp
10) He has further deposed that on 20/01/2015 at about 3.30 p.m.
Tanubai along with Baidabai, Maya Pawar and Advocate Varsha
Deshpande visited the clinic of Dr. Kadam. Tanubai had requested the
doctor to perform the sonography test on her and disclose the sex of
the foetus. That doctor had subjected Tanubai to sonography test and
had disclosed that the sex of the foetus is female. Accused doctor
Kadam had demanded Rs. 2000/-. She had given the trap amount. She
then disclosed to Varsha Deshpande all that had happened in the clinic.
Accordingly the same information was given to P.W. 1 by Advocate
Varsha Deshpande. Pursuant to the said information, he visited Mukta
clinic and conducted search and seizure operation. Twenty currency
notes of Rs. 50/- were seized from the drawer of the doctor's consulting
table. It was noticed by P.W. 1 that the registration certificate issued by
Government Authorities was not displayed at the sonography centre. A
panchanama of all the documents was drawn. P. W. 1 had seized the
consent form. The name of Tanubai was not shown in the consent form
register as well as sonography register. P. W. 1 had sealed the
sonography machine and a panchanama was drawn to that effect. He
ism
7 2085.13 wp
has proved the register and other documents.
11) P. W. 1 has further stated as follows:
"Thereafter I have taken the statements of Tanubai Madane. She
has told sex of foetus is female as told by accused and for that
sake she has paid Rs. 2000/- to the accused. Also I have recorded
the statements of Baidabai Madane, Maya Pawar, Sangita Raut
and statement of the accused. I found that misuse of violation
of PCPNDT Act in the form of not displaying registration
certificate, not maintaining proper record and indicating sex of
the foetus to the mother after sonography. Hence, I filed the case
against the accused on 22/01/2005. Now the complaint shown to
me is the same. It bears my signature. Contents of it true and
correct. It is at Exhibit 1".
12) P. W. 1 has further stated that as an Appropriate Authority, he has
the power to record the statements according to Law and therefore he
recorded the statements of Tanubai. He has proved the statement of
Tanubai and the same is exhibited at Exhibit 66.
13) He has further deposed that he recorded the statement of
Baidabai as per her version. It bears her thumb impression. It is
attested by Maya Pawar. He has proved the contents of statement of
ism
8 2085.13 wp
Baydabai and the said statement is marked as Exhibit 67. He has then
deposed that he recorded the statement of Maya Pawar as per her
narration. He is the scribe of the said statement. He has proved the
contents of the said statement which is marked as Exhibit 68.
14) P. W. 1 has further deposed before the Court as follows;
"Accused had submitted his own statement in his own
handwriting and it was written by him before me. Its contents are
true and correct. It is at Exhibit 69".
The witness has further proceeded to reproduce the statement of the
accused as was allegedly submitted by him. It is also submitted that ten
minutes after the alleged sting operation, Advocate Varsha Deshpande
and her colleagues and relatives all came in and accused submitted his
statement in his own handwriting to him. The witness has identified
the accused before the Court. He has then deposed that receptionist
Mrs. Raut had also submitted her statement in her own handwriting
before P. W. 1. He had endorsed upon the same. He has proved the
contents of the said statement and hence, it is marked as Exhibit 70.
The examination-in-chief concluded on 30/11/2011. Cross-
ism
9 2085.13 wp
examination was deferred at the request of accused.
15) Perused records and proceedings. In fact, on 23/12/2011,
accused had filed an application before learned Judicial Magistrate
First Class and had brought it to the notice of learned Magistrate that
while recording the examination-in-chief inadmissible evidence has
been recorded by the Court. Accused/applicant had highlighted the
portion which was inadmissible evidence. Accused had quoted paras
10, 11, 14, 15, 16 & 17 to be inadmissible evidence. It was submitted
that Dr. Chiwate is not an eye witness to the alleged incident.
Admittedly he had arrived at the hospital of the accused after the entire
incident was over. Moreover, if the Appropriate Authority has all the
powers similar to the police officer under the PCPNDT Act, then the
statement of the accused made before him would not be admissible in
law. That any alleged confessional statement before an authority,
authorised to investigate alleged offence would be hit by section 25 of
Indian Evidence Act and under section 162 of Code of Criminal
Procedure, 1973. Therefore, a prayer was made that the said portions
be deleted and de-exhibited and not be read in evidence.
ism
10 2085.13 wp
16) Learned Judicial Magistrate First Class, Koregaon vide order
dated 06/01/2012 was pleased to reject the said application. Learned
Magistrate has observed that accused/applicant failed to show any
provision by which it can be construed that Dr. Sanjay Chiwate has
acted as investigating police officer and therefore according to learned
Magistrate since Dr. Chiwate was not a police officer, the statement of
the accused could not be hit by section 25 of the Indian Evidence Act.
Learned Magistrate further held that the statements are exhibited by
way of portion mark only to curtail the time in short it is a short cut
way of recording the evidence and therefore, this contention is not
acceptable. Application filed by the accused was rejected vide order
dated 06/01/2012.
17) Being aggrieved by the said order, accused had filed criminal
revision application no. 15 of 2012 before court of sessions at Satara.
In the revision application, it was contended that Dr. Sanjay Chiwate
had learnt about alleged incident from Advocate Varsha Deshpande
whose substantive evidence was not recorded before framing charge
and hence, it was hearsay evidence, not admissible in Law. It was
ism
11 2085.13 wp
further contended that Appropriate Authority had exercised the powers
similar to the police officers under PCPNDT Act. Hence, statement of
accused is not admissible in Law. It was further contended that
appropriate confession before P.W. 1 is inadmissible as it is a statement
hit by section 25 of the Indian Evidence Act. Learned Revisional Court
vide judgment and order dated 29/01/2013 was pleased to allow
revision application and thereby had set aside the order passed below
Exhibit 72 by learned Judicial Magistrate First Class, Koregaon. The
contents of the statements marked as Exhibit 67, 68 69 were to be de-
exhibited and discredited. Hence, this writ petition.
18) Learned counsel for the petitioner has drawn the attention of this
Court to section 17 (4) (C) of PCPNDT Act, 1994 which contemplates
as follows:
"(4) The Appropriate Authority shall have the following
functions, namely:
(c) to investigate complaints of breach of the provisions of this
Act or the rules made thereunder and take immediate action".
19) Section 17 has to be read in consonance with section 30 of the
ism
12 2085.13 wp
said Act which contemplates that a documentary evidence in such cases
would include statement of decoy witnesses, case history of the patient,
the tape and video recording and other material collected as evidence
in course of conducting tests. The complete evidence to be submitted
before the Magistrate would include a copy of the complaint, a
statement showing the list of the witnesses, both witnesses of the
search and seizure and decoy witnesses, the report of the search and
seizure or commonly called panchanama, copy of all documents
collected, statements of witnesses, if any.
20) According to learned counsel for the petitioner, the Appropriate
Authority has the power to record the statements of the witnesses and
therefore, according to him, the said statements are produced before
the Magistrate along with the complaint filed by the Appropriate
Authority. It is therefore submitted that he has the power to prove the
contents of the said statement.
21) As an extension to arguments advanced by the learned counsel
for the petitioner, learned counsel for the respondent submits that since
the Appropriate Authority investigates the complaints of breach of
ism
13 2085.13 wp
provisions of the said Act, he is an Investigating Officer and therefore,
statement of the accused recorded by him would be necessarily hit by
section 25 of the Indian Evidence Act and hence, in the course of
recording of evidence of P.W. 1, statement of the accused cannot be
exhibited. The proceedings under PCPNDT Act are initiated and
conducted in accordance with Code of Criminal Procedure, 1973.
22) In the case of Narbada Devi Gupta V/s Birendra Kumar Jaiswal
(A.I.R. 2004 S.C. 175) The Hon'ble Apex Court has held as follows.
"Mere production and marking of a document as exhibit by the
court cannot be held, to be a due proof of its contents. Its
execution has to be proved by admissible evidence that is by the
'evidence of those persons who can vouchsafe for the truth of the
facts in issue'. The situation is, however, different where the
documents are produced, they are admitted by the opposite party,
signatures on them are also admitted and they are marked
thereafter as exhibits by the court".
23) This would imply that although P. W. 1 has referred all the
statements of the witnesses, they cannot be considered as admissible
evidence unless the said witnesses enter into witness box and
ism
14 2085.13 wp
vouchsafe about the said aspects. Therefore, exhibition of the said
documents may not have any significance.
24) Section 60 of the Indian Evidence Act reads thus;
"Oral evidence must be direct.--Oral evidence must, in all cases
whatever, be direct; that is to say-- If it refers to a fact which
could be seen, it must be the evidence of a witness who says he
saw it; If it refers to a fact which could be heard, it must be the
evidence of a witness who says he heard it; If it refers to a fact
which could be perceived by any other sense or in any other
manner, it must be the evidence of a witness who says he
perceived it by that sense or in that manner; If it refers to an
opinion or to the grounds on which that opinion is held, it must
be the evidence of the person who holds that opinion on those
grounds: Provided that the opinions of experts expressed in any
treatise commonly offered for sale, and the grounds on which
such opinions are held, may be proved by the production of such
treatises if the author is dead or cannot be found, or has become
incapable of giving evidence, or cannot be called as a witness
without an amount of delay or expense which the Court regards
as unreasonable: Provided also that, if oral evidence refers to the
existence or condition of any material thing other than a
document, the Court may, if it thinks fit, require the production of
ism
15 2085.13 wp
such material thing for its inspection".
25) It goes without saying that oral evidence must be direct in all
cases. It is a cardinal Rule of evidence that the best available evidence
should be brought before the Court.
26) In the present case, the Court cannot be oblivious of the fact that
the evidence of Tanubai was recorded before framing of charge. She
has resiled from her earlier statement. She has not supported the
prosecution. In the cross-examination by the prosecutor, she has
admitted that she along with Baidabai and Maya Pawar had been to the
hospital. After examination, she was informed that the foetus is of four
months. She has not identified accused before the Court. She has
categorically stated;
"I do not know that Maya Pawar has given Rs. 2000/- to the
accused".
27) Similarly the evidence of Maya Pawar was also recorded before
framing of charge. She has supported the prosecution. She has proved
her previous statement recorded by P.W. 1. P. W. 4 Baidabai Madane was
ism
16 2085.13 wp
also examined before framing of charge. She has also supported the
prosecution. In the cross-examination she has admitted that she has
come to the Court along with Shaila Jadhav.
28) The most important aspect is that the decoy witness to whom the
sex of the foetus was disclosed has not supported the prosecution and
therefore her statement cannot be proved through P. W. 1.
29) The questions that falls for determination by this Court as per the
submissions of the respective counsel are as follows:
(i) Whether Appropriate Authority is Investigating Officer?
(ii) Whether Appropriate Authority has the powers to record
the statements?
(iii) Whether statement so recorded is previous statement as per
section 161/162 of Code of Criminal Procedure, 1973?
(iv) What is the evidentiary value of the statement of the
accused recorded by the Appropriate Authority?
(v) Whether the said statement is a confession and therefore hit
by section 25 of Indian Evidence Act?
(vi) Whether the statements recorded by Appropriate Authority
ism
17 2085.13 wp
can be accepted in the course of recording of evidence of P. W. 1?
30) An Encyclopedic Law Lexicon defines "Appropriate" as follows;
The word 'Appropriate' is defined in Websters New Dictionary and
Thesaurus is
"Applicable, apposite, appurtenant, appropos, apt".
31) Section 30 of PCPNDT Act confers power upon Appropriate
Authority to carry out search and seizure at the Genetic Clinic or Centre
where Appropriate Authority has reason to believe that some offence
under the PCPNDT Act, 1994 has been or is being committed.
32) Section 17 (A) of PCPNDT Act reads thus:
"Powers of Appropriate Authorities - The Appropriate
Authority shall have the powers in respect of the following
matters, namely -
(a) summoning of any person who is in the possession of any
information relating to violation of the provisions of this Act or
the rules made thereunder;
(b) production of any document or material object relating to
Clause (a);
(c) issuing search warrant for any place suspected to be
indulging in sex selection techniques or pre-natal sex
ism
18 2085.13 wp
determination; and
(d) any other matter which may be prescribed".
Section 2 (h) of Code of Criminal Procedure, 1973 defines
investigation;
"Investigation includes all the proceedings under this Code for
the collection of evidence, conducted by the police officer or by
any person (other than a Magistrate) who is authorised by a
Magistrate in this behalf".
33) As far as the provisions of PCPNDT Act are concerned, the
definition contemplated under section 2 (h) of Code of Criminal
Procedure, 1973 will have to be split up into two parts.
(i) Investigation includes all the proceedings under this Code
for the collection of evidence conducted by the police officer.
(ii) Or by any person authorised by a Magistrate.
34) It is apparent on the face of the record that although section 17
(c) empowers the Appropriate Authority to investigate the complaints,
it cannot be said that Appropriate Authority is Investigating Officer as
contemplated under section 2 (h) of Code of Criminal Procedure, 1973
ism
19 2085.13 wp
since Appropriate Authority is neither a police officer nor a person
authorised by a Magistrate. Therefore, investigation as contemplated
under section 17 (c) of the said Act would only mean that Appropriate
Authority is empowered to collect evidence and record the statements
of decoy witnesses, other witnesses such as panch witnesses or the
person who had passed on the reliable information etc. Appropriate
Authority may seek explanation from the accused in order to give him a
fair opportunity to put up his case before initiating criminal
proceedings, however, the said statement, being a statement of the
accused is not confessional statement nor is it a statement under
section 162 of Code of Criminal Procedure, 1973. Even if the statement
of the accused is in the form of an admission, it cannot be relied upon
for the purpose of recording conviction. Accused has a right to defend
himself at the trial.
35) In the facts of the present case, it is an admitted position that
the complainant cannot prove the contents of the statement of the
accused. At the end of the trial, accused has two options namely to
offer his explanation under section 313 (1) and (2) of Code of Criminal
ism
20 2085.13 wp
Procedure, 1973 and also examine witnesses in his defence. Learned
Magistrate ought to have accepted the statement of the accused.
Learned Magistrate has observed that the exercise of exhibition of a
document is only for the purpose of identification and it does not
amount to proving the contents of the said statement. In fact,
Appropriate Authority can only state that he has recorded the
statements of the witnesses, however, contents of the said statements
would have to be proved by recording substantive evidence of the
respective witnesses. Appropriate Authority is not Investigating Officer
as contemplated under section 2 (h) of Code of Criminal Procedure,
1973.
36) In the case of Somprakash Rakhi V/s Union of India and
another (A.I.R. 1981 S.C. 643) The Hon'ble Apex Court has observed
that:
" 'Authority' in law belongs to the province of power: Authority
(in Administrative Law) is a body having jurisdiction in certain
matters of a public nature. Therefore, the "ability conferred upon
a person by the law to alter, by his own will directed to that end,
the rights, duties, liabilities or other legal relations, either of
ism
21 2085.13 wp
himself or of other persons" must be present ab extra to make a
person an 'authority'. When the person is an 'agent or instrument
of the functions of the State' the power is public. So the search
here must be to see whether the Act vests authority, as agent or
instrument of the State, to affect the legal relations of oneself or
others. Sometimes the test is formulated, over-simplified fashion,
by asking whether the corporation is formed by a statute or under
a statute. The true test is functional. Not how the legal person is
born but why it is created. Nay more. Apart from discharging
functions or doing business as the proxy of the State, wearing the
corporate mask there must be an element of ability to affect legal
relations by virtue of power vested in it by law."
37) By virtue of powers conferred upon it by section 17 (4) (c)
Appropriate Authority has the powers to investigate the complaints. By
inference it can be said that Appropriate Authority has the powers to
collect evidence, sufficient to enable the Appropriate Authority to file a
complaint against the delinquent Medical Officer who is functioning in
violation of the provisions of PCPNDT Act. The Court cannot be
oblivious of the fact that before initiating complaint Appropriate
Authority has to call for an explanation from the proposed delinquent
ism
22 2085.13 wp
doctor and upon being dissatisfied with the explanation offered
thereunder, he shall initiate prosecution and therefore this would
answer the first two questions that Appropriate Authority has the
powers to record the statement of the relevant witnesses or parties who
can apprise Appropriate Authority of the commission of offence by
delinquent doctor. Appropriate Authority or authorised officer has to
give a notice of not less than 15 days in the manner prescribed before
filing a complaint. Appropriate Authority, upon the nature of evidence
collected by him must have a reason to believe that an offence under
the Act has been committed by the Genetic Councelling Centre or the
Genetic Clinic.
38) The Statute contemplates that no court shall take cognizance of
an offence except upon a complaint filed by the Appropriate Authority
or by three authorities under the provisions of section 28 of the said
Act.
39) Needless to say that Appropriate Authority cannot be termed as
Investigating Officer and therefore any statement made before him by
the accused would not be hit by section 25 of the Indian Evidence Act.
ism
23 2085.13 wp
The accused would be at liberty to take an independent defence
irrespective of the explanation tendered before Appropriate Authority.
The said statement cannot be termed as a confessional statement for
the simple reason that prior to initiating criminal prosecution, the
Statute contemplates that Appropriate Authority shall issue notice to
the proposed accused and upon arriving at a conclusion that an
explanation is not satisfactory, prosecution would be initiated. As far as
present case is concerned, Appropriate Authority i.e. P. W. 1 can only
depose before the Court that accused had admitted an offence before
him at the threshold. The witness can only inform the court about all
steps taken by him in the course of collecting evidence. The witness
would be at liberty to tell the court about the statements made before
him by different persons, however, the said statements will have to be
proved through the deponent who is alleged to have disclosed the same
to the Appropriate Authority. The statements made by the witnesses
cannot be accepted in the course of recording of evidence of the scribe.
The previous statement of a witness cannot be used as substantive
evidence, it can only be used by the defence to contradict or discredit
ism
24 2085.13 wp
any witness. The same exercise cannot be undertaken while cross-
examining the scribe of the said statement. The witness would be at
liberty to deny all that is said in examination-in-chief before framing
the charge and therefore, it can be held that learned Magistrate has
committed an error by accepting the statements of the witnesses and
the accused while recording the evidence of P. W. 1. A witness can be
confronted with his own statement.
40)
Learned Magistrate has held that the purpose of accepting the
document is only for convenience of the court and is a short cut
method of identification of documents. This may be true in case of a
document which may be admitted or denied under section 294 of Code
of Criminal Procedure, 1973, however, the same exercise cannot be
undertaken in proving the statement of a witness. The statement of the
witnesses in a case as the present one would be hearsay evidence since
P.W. 1 is not an eye witness. He has collected the evidence as narrated
by the witness who had initially disclosed it to Advocate Varsha
Deshpande. In fact, the Law requires evidence to be given under
personal responsibility i.e. every witness must give his/her testimony
ism
25 2085.13 wp
under such circumstances as would expose him to all the penalties of
falsehood which may be inflicted by any of the sanctions of truth.
Therefore, the principle that needs to be followed is that of second
hand evidence whether all the contents of a document or of the
language of a third person which is not connected by responsible
testimony that the party against whom it is offered is to be rejected. A
derivative or second hand evidence is excluded owing to its infirmity as
compared with its original source.
41) Learned counsel for the respondent vehemently and rightly
submits that exhibition of a document would mean that the contents of
the document are proved. In the present case, P.W. 1 cannot prove the
contents of a statement. The deponent would have to subject
himself/herself to the test of cross-examination. In fact, in the evidence
before charge, the contents of the statement have been proved by the
respective witnesses except Tanubai. All this leads to the inference that
Appropriate Authority is not Investigating Officer. That he has the
powers to record the statement of the witnesses in the course of
collecting evidence, sufficient to initiate prosecution. Collection of
ism
26 2085.13 wp
evidence to make out a case for initiating prosecution is an
independent exercise. Investigating an offence and collection of
evidence would operate in two different areas and are independent of
each other. The admissibility of the said statements of witnesses will
have to be considered in the course of recording substantive evidence
of the respective witness. Statement of the accused recorded by the
Investigating Officer is not a statement hit by section 25 of the Indian
Evidence Act. The accused would be at liberty to deny the said
disclosure statement or to raise a defence that the said statement was
not a voluntary statement. The admissibility of the said statement can
be examined only after recording of entire evidence is concluded and at
the stage of 313 of Code of Criminal Procedure, 1973. In the course of
recording statement under section 313 of Code of Criminal Procedure,
1973, the Court shall frame the question apprising the accused of the
fact as to whether he had given a written explanation to the
Appropriate Authority at the threshold. The said statement may be
exhibited only for the purpose of identification of the document and for
the convenience of maintaining and marking the records but it cannot
ism
27 2085.13 wp
be said that the contents of the said statement of the accused are
proved and the said statement cannot be used against the accused as
no person can incriminate himself without being guarded in accordance
with Law.
42) Hence, following order.
O R D E R
(i) Writ petition is dismissed.
(ii)
Clause 'C' of the operative order passed by Additional
Sessions Judge Satara dated 29/01/2013 is hereby confirmed.
Statements at Exhibit nos. 67, 68 & 69 be de-exhibited.
(iii) It is made clear that contents of the statement of Exhibit
nos. 67, 68 & 69 cannot be proved through evidence of P.W. 1.
(iv) Statement at Exhibit 70 also be de-exhibited.
(v) Record and proceedings be sent to the Court of Judicial
Magistrate First Class, Koregaon.
(vi) Rule is discharged.
(SMT. SADHANA S. JADHAV, J.)
ism
