Bombay High Court

Shri. Bajrangsing S/O. ... vs The State Of Maharashtra Thr. ... on 4 May, 2017

Bench: P.N. Deshmukh

                                                       1                          apl235.17

                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                                   NAGPUR BENCH : NAGPUR



                    CRIMINAL APPLICATION (APL) NO.235 OF 2017



1)      Bajrangsingh s/o Sardarsingh Rajput,
        aged about 52 years, occupation :
        Labourer, r/o Anikat Zopadpatti, 
        Akola. 

2)      Ranjeetsingh Gulabsingh Chungade,
        aged about 67 years, occupation :
        Business, Rajputpura, Akola.                       ...            Applicants 

                  - Versus -

The State of Maharashtra, through its
Police Station Officer, Police Station, 
Ramdaspeth, Akola.                                         ...            Respondent


                                   -----------------
Shri   Anil Mardikar, Senior Advocate with Shri S.G. Joshi, Advocate for
applicants. 
Shri T.A. Mirza, Additional Public Prosecutor for respondent. 
                                   ----------------

                  Date of reserving the judgment           :   26/04/2017

                  Date of pronouncing the judgment   :  04/05/2017


                                          CORAM :   P.N. DESHMUKH, J.

                                        DATED  :   MAY 4,  2017
                            




    ::: Uploaded on - 06/05/2017                             ::: Downloaded on - 07/05/2017 00:50:35 :::
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JUDGMENT  :

Admit. Heard finally with consent of Shri Mardikar, learned

Senior Counsel for applicants, and Shri Mirza, learned Additional Public

Prosecutor for respondent.

2) This criminal application is filed by applicants (hereinafter

referred to as "accused") for quashing of the common order dated

29/3/2017 passed by learned Additional Sessions Judge, Akola in Sessions

Trial No.234/2002 below Exh. 287, which application is filed by accused

for de-exhibiting the documents, Exh.290, which application is filed by

accused for summoning Sanctioning Authority, who had accorded

sanction to prosecute accused under Arms Act and Exh 291, which is filed

by accused for summoning Chemical Analyser/Ballistic Expert, which

came to be rejected.

3) Before going to the facts of this application as revealed from

the affidavit-in-reply filed by respondent, it is noted that as per order

dated 20/11/2015 passed by this Court, prosecution was allowed to lead

secondary evidence by observing that such evidence was required to be

led as the record was destroyed and as such, its reconstruction was

allowed. The said order appears to have been passed by this Court in

view of the fact that after filing of charge-sheet, original record was torn

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and damaged and thus, reconstruction of such record was allowed and

trial has commenced. It is further material to note that trial is of the year

2002 in respect of the offence, which took place in 1993. It is thus noted

that trial is being prolonged for last 23 years. It is not in dispute that

prosecution has accordingly reconstructed the record and provided copies

thereof to accused and learned trial Court during the course of recording

evidence has exhibited certain documents, which are marked as Exhs. 273

to 284 by recording objections of accused to be decided finally at the stage

of arguments. It is, therefore, contended on behalf of accused that

documents, which are exhibited, in fact could not be admitted and read in

evidence as secondary evidence and as such, same be de-exhibited.

However, under the impugned order, request of accused is not allowed.

4) At this juncture it is material to note that admittedly, request

of accused to de-exhibit documents, which are exhibited as aforesaid,

appears to have been rejected by the impugned order observing that as

admittedly there is no original record available since torn and only partly

torn documents are available on record, no copies can be prepared from

the torn record and had it been possible, then there would be no necessity

to direct re-construction of record from the documents, which are

available with prosecution and accused. Hence, question of reconstruction

of record after comparing documents with original record, which itself is

torn, does not arise. In the light of these facts, learned Additional

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Sessions Judge has rejected application (Exh. 287) filed by accused for

de-exhibiting the documents.

5) From the above facts, it is, therefore, clear that Exhs.273

to 284, which are stated by learned Senior Counsel for accused to be in

the form of correspondence by way of requisition letter to Chemical

Analyser, duty pass issued to Police Constable for carrying muddemal,

letter to Chemical Analyser and its envelope, Chemical Analyser's reports,

correspondence made by Investigating Officer with local Crime Branch

and Sanctioning Authority, who granted sanction for prosecution of

accused under Arms Act, correspondence with Superintendent of Police

for filing charge-sheet, permission to file charge-sheet, etc. are the

documents, which came to be exhibited.

6) Shri Mardikar, learned Senior Counsel for accused, in the set

of circumstances, has referred to decision of Full Bench of this Court in the

case of Hemendra Rasiklal Ghia vs. Subodh Mody (2008 (6) Mh.L.J.

886) and decision of Hon'ble Apex Court in the case of Bipin Shantilal

Panchal vs. State of Gujarat and another (AIR 2001 SC 1158).

7) Shri Mirza, learned Additional Public Prosecutor for

respondent, has opposed the application in the light of affidavit-in-reply

on record and law laid down by Hon'ble Apex Court in the case of State

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through Special Cell, New Delhi vs. Navjot Sandhu alias Afshan Guru

and others {(2003) 6 SCC 641)

8) The view taken by learned Single Judges in the case of

Durgashankar vs. Babubhai (2003 (2) Mh.L.J. 576) and in the case of

Bharat R. Desai vs. Naina M. Bhal (2004 (2) Mh.L.J. 901) was that

while allowing parties to lead evidence in the form of affidavits, if same is

objected to, the admissibility of documents must be decided by the Court

before the documents are exhibited in evidence and that decision cannot

be postponed to a later stage till final disposal of the case, while another

view taken by learned Single Judge in the case of Boman P. Irani vs.

Manilal P. Gala (2004 (2) Mh.L.J. 128) was that documents in question

may be taken on record and marked as exhibits tentatively subject to the

objections raised by defendants for decision, which should be considered

at the time of final arguments and judgment. This view was based on the

ratio laid down by the Hon'ble Apex Court in the case of Bipin Shantilal

Panchal (supra) and in the case of State vs. Navjot Sandh (supra).

9) In view of above conflicting views of the learned Single Judges

of this Court and considering the importance of question, reference was

made to be decided by the Larger Bench by forming following question :

"Whether objections as to the admissibility or mode of proof of evidence, oral and documentary, should be decided upon when raised or whether decisions thereon can be deferred to a

6 apl235.17

later stage."

10) The Full Bench of this Court in paragraphs 48 and 49 of its

judgment in the case of Hemendra Rasiklal Ghia (supra) has considered

the law laid down by Hon'ble Apex Court in the case of Bipin Shantilal

Panchal (supra) and State vs. Navjot Sandhu (supra) as well as relevant

provisions of Order XIII and XVIII of the Code of Civil Procedure and

classified admissibility of documents in evidence broadly into three

categories as under :

(i) that objection to the document, which is sought to be proved is itself insufficiently stamped and the objection relates to deficiency of stamp duty of the document;

(ii) where the objection does not dispute admissibility of document in evidence, but is directed towards the mode of proof alleging the same to be irregular or insufficient; and

(iii) the objection that the document, which is sought to be proved is ab initio inadmissible in evidence.

In para 92 of the judgment, Full Bench has replied the answer as under :

"92. In view of the above analysis of the statutory provisions and our discussion, we, accordingly, articulate our conclusions as follows :

Answer to Question - A :

As already noticed, (i) objection to the document sought to be produced relating to the deficiency of stamp duty must be taken when the document is tendered in evidence and such

7 apl235.17

objection must be judicially determined before it is marked as exhibit;

(ii) Objection relating to the proof of document of which admissibility is not in dispute must be taken and judicially determined when it is marked as exhibit;

(iii) Objection to the document, which in itself is inadmissible in evidence can be admitted at any stage of the suit reserving decision on question until final judgment in the case.

The Court trying the suit or proceedings as far as possible is expected to decide the admissibility or proof of document as indicated hereinabove. As we have already added a word caution that while exercising discretion judiciously for the advancement of the cause of justice for the reasons to be recorded, the Court can always work out its own modality depending upon the peculiar facts of each case without causing prejudice to the rights of the parties to meet the ends of justice and not to give the handle to either of the parties to protract litigation. The aim should always be to prevent miscarriage of justice and expedite trial, which is the dire need of the time.

Answer to Question - B :

The objection to the admissibility or relevancy of evidence contained in the affidavit of evidence filed under Order XVIII, Rule 4 of Civil Procedure Code can be admitted at any stage reserving its resolution until final judgment in the case as held in Ameer Trading Corpn. Ltd. vs. Shapoorji Data Processing Ltd. (supra)."

11) It is, however, material to note that law relied upon by

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accused is pertaining to the provisions under the Code of Civil Procedure

while in the case of Bipin Shantilal Panchal (supra) as well as State vs.

Navjot Sandhu (supra), both the decisions are from criminal trial. In the

case of Bipin Shantilal Panchal (supra), in paras 12, 13 and 14 of the

judgment, Hon'ble Apex Court has observed thus :

"12. It is an archaic practice that during the evidence collecting stage, whenever any objection is raised regarding admissibility of any material in evidence, the Court does not proceed further without passing Order on such objection. But the fall out of the above practice is this : Suppose the trial Court, in a case, upholds a particular objection and excludes the material from being admitted in evidence and then proceeds with the trial and disposes of the case finally. If the appellate or revisional Court, when the same question is re-canvassed, could take a different view on the admissibility of that material, in such cases the appellate Court would be deprived of the benefit of that evidence, because that was not put on record by the trial Court. In such a situation, the higher Court may have to send the case back to the trial Court for recording that evidence and then to dispose of the case afresh. Why should the trial prolong like that unnecessarily on account of practices created by ourselves. Such practices, when realised through the course of long period to be hindrances which impede steady and swift progress of trial proceedings, must be recast or re-moulded to give way for better substitutes, which would help acceleration of trial proceedings.

13. When so recast, the practice which can be a better substitute is this : Whenever an objection is raised during evidence taking stage

9 apl235.17

regarding the admissibility of any material or item of oral evidence, the trial Court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the Court finds at the final stage that the objection so raised is sustainable, the Judge or Magistrate can keep such evidence excluded from consideration. In our view, there is no illegality in adopting such a course. However, we make it clear that if the objection relates to deficiency of stamp duty of a document, the Court has to decide the objection before proceeding further. For all other objections, the procedure suggested above can be followed.

14. The above procedure, if followed, will have two advantages. First is that the time in the trial Court, during evidence taking stage, would not be wasted on account of raising such objections and the Court can continue to examine the witnesses. The witnesses need not wait for long hours, if not days. Second is that the superior Court, when the same objection is re-canvassed and reconsidered in appeal or revision against the final judgment of the trial Court, can determine the correctness of the view taken by the trial Court regarding that objection, without bothering to remit the case to the trial Court again for fresh disposal. We may also point out that this measure would not cause any prejudice to the parties to the litigation and would not add to their misery or expenses."

12) Thus, the Hon'ble Apex Court in the case of Bipin Shantilal

Panchal (supra) has laid down a procedure to be followed by the trial

Court whenever an objection is raised regarding admissibility of any

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document by holding that on noting such objection, such document

should be tentatively marked as exhibit and the objection should be

decided at a final stage.

13) Similarly, in the case of State vs. Navjot Sandhu (supra),

which also arises out of criminal trial, where objection was raised on

behalf of accused regarding admissibility of intercepted communications

as evidence, relying upon the law laid down in the case of Bipin

Shantilal Panchal (supra), it is held by Hon'ble Apex Court that such

objection should have been decided by the trial Court at the stage of

final hearing.

14) From the impugned order, it is found that though objection

was raised on behalf of accused for de-exhibiting documents as

aforesaid, learned trial Court appears to have rejected the request

without adhering to the procedure laid down by Hon'ble Apex Court as

aforesaid and thus, having considered facts involved in the present

application, so far as Exh. 287 for de-exhibiting the documents filed by

accused is concerned and law as discussed hereinabove, it is just and

proper to direct learned Sessions Judge to consider the documents,

which are marked as Exhs. 273 to 284 at the time of final hearing by

ignoring his observations as revealed from the impugned order passed

below Exh. 287.

                                                    11                               apl235.17



     15)            Another   application,   order   on   which   is   impugned   in   this

application, is Exh. 290 filed by accused for calling Sanctioning

Authority, i.e. District Magistrate, who accorded sanction for

prosecution of accused under Arms Act. Shri Mardikar, learned Senior

Counsel for accused, has contended that in spite of raising objection,

sanction accorded for prosecution is marked as Exh. 281 in the evidence

of P.W.9 Dashrath Gawande, Investigating Officer. The grounds

mentioned in the application (Exh. 290) for summoning the Sanctioning

Authority are that the Investigating Officer in the cross-examination has

admitted that he has not obtained sanction from the District Magistrate

to launch prosecution while Officer, who had granted sanction to

prosecution is no more alive. It is also admitted by the Investigating

Officer that he is unable to say what documents were considered by the

Sanctioning Authority while granting sanction and as such, it is

contended that in the absence of evidence, sanction order came to be

exhibited and as such, accused are deprived of their right to cross-

examine the witness, which is prejudicial to their interest.

16) Learned trial Judge in para 17 of the impugned order

rejected the request as aforesaid by noting that under Section 74 of the

Indian Evidence Act, sanction order being public document, can be

exhibited and read in evidence. It is, however, material to note that as

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per established law, Sanctioning Authority before according sanction has

to apply his mind and depose as to what were the facts considered by

him, on the basis of which he reached the conclusion that case for grant

of sanction to prosecute accused is made out. However, in view of

procedure adopted by learned Sessions Judge, it is noted that in the

absence of evidence of Sanctioning Authority, there is every possibility

of prejudice having been caused to accused as from the aforesaid

evidence of Investigating Officer, prima faice it is noted that it is

necessary to cross-examine Sanctioning Authority on the aspects raised

in the application. The impugned order below Exh. 290 is, therefore,

liable to be set aside. In the circumstances, on an application, if any

moved by defence to summon the Sanctioning Authority, learned trial

Court shall consider the same by giving an opportunity to accused to

cross-examine the Sanctioning Authority.

17) Lastly, application (Exh. 291) appears to have been

preferred by accused for calling Chemical Analyser/Ballistic Expert for

cross-examination. Shri Mardikar, learned Senior Counsel for accused,

has contended that prosecution has placed on record two Chemical

Analyser's reports issued by Ballistic Expert, which admittedly were in a

torn condition and as such, their copies could not be prepared and,

therefore, prosecution has placed on record copies of Ballistic Expert's

reports, which are marked as Exhs. 277 and 278 from the evidence of

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P.W.9 Gawande, Investigating Officer, though accused had raised

objection for exhibiting the same. It is further submitted that accused,

therefore, filed application to summon the Ballistic Expert. However, it

was reported that one of the Deputy Directors is dead and address of

another Deputy Director was given, who is now retired from his service.

According to accused, examination of Ballistic Expert is necessary in

view of evidence of Investigating Officer when he has admitted that he

has not enquired with the Ballistic Expert as to what is the close range of

country made pistol, which is allegedly seized in the present crime and

Ballistic Expert can ascertain the same and as to when last firing was

made from the alleged fire-arm, of which there are no reports on record.

Thus, it is the case of accused that for fair trial, they want to cross-

examine the Ballistic Expert on aforesaid aspects and also on other

grounds as put forth in the application (Exh. 291). However, learned

trial Court under the provisions of Section 293 of Code of Criminal

Procedure exhibited the Ballistic Expert's reports and dropped the

evidence of these prosecution witnesses. Learned trial Court has noted

that these Chemical Analyser's reports are marked as Exhs. 277 and 278

under Section 293 of Code of Criminal Procedure as prior to that,

summons issued to Ballistic Expert could not be served as one of the

Deputy Directors is reported to be dead while another Chemical

Analyser/Ballistic Expert, who has issued report, has retired and if his

presence is to be secured, summons should be served to him 15 days

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prior to date of his appearance. It is, therefore, prima facie found that

in view of evidence of Investigating Officer, cross-examination of

Ballistic Expert, who has issued Exhs. 277 and 278, is necessary as both

these documents came to be exhibited under Section 293 of Code of

Criminal Procedure. However, fact remains that there could be no

cross-examination of these Experts, which, in the result, shall prejudice

the right of accused. Learned trial Court though has considered that

Investigating Officer has admitted that he had not made enquiry with

the Ballistic Expert regarding close fire range of country made pistol and

Ballistic Expert can ascertain when last firing was made from the seized

country made pistol and even noting that there is no such opinion given

by Ballistic Expert, rejected the prayer of accused finding that details

given in Exhs. 277 and 278 by the Chemical Analyser/Ballistic Expert

are sufficient to explain the queries of accused. However, fact remains

that apart from contents of these documents whatsoever, in view of

evidence of Investigating Officer admitting facts as aforesaid, it is found

that there is substance in the request of accused to summon Chemical

Analyser/Ballistic Expert for cross-examination. Merely because trial is

pending for sufficient period, that by itself can be no ground to reject

such prayer of accused unless and until it is found by learned trial Court

that such tactics are adopted by accused intentionally, just for the

purpose of delay or for defeating the ends of justice, which from the

above facts are apparently not noted. In the circumstances, impugned

15 apl235.17

order passed below Exh. 291 is liable to be set aside. Needless to say

that trial since has been prolonged for one or other reason for sufficient

long time, accused shall cooperate during the course of trial.

18) Considering the fact that offence involved in the case is of

1993 and already about 23 years have lapsed and trial is yet to

conclude, which is found to have reached its fag end and is fixed for

recording statement of accused under Section 313 of Code of Criminal

Procedure, applications, if any, are found made by accused for calling

Sanctioning Authority as well as Chemical Analyser/Ballistic Expert,

same shall be allowed by learned trial Court. Needless to say that

accused shall cooperate with prosecution in view of the fact that trial is

being prolonged for long period as aforesaid. In that view of the matter,

criminal application is disposed of in the following terms :

(i) The criminal application is partly allowed.

(ii) The impugned order passed by learned Additional Sessions Judge, Akola below Exhs. 287, 290 and 291 in Sessions Trial No.234/2002 is set aside.

(iii) Learned Sessions Judge, whosoever is seized with Sessions Trial No.234/2002, shall consider admissibility of documents marked as Exhs. 273 to 284 at the time of final hearing by ignoring the observations made in the impugned order.

             (iv)           Applications,   if   any,   are   made   by   accused   within





                                                  16                             apl235.17

reasonable time for calling Sanctioning Authority as well as Chemical Analyser/Ballistic Expert for their cross-examination, same shall be allowed by learned trial Court.