Page No.# 1/4 vs Ghanashyam Choubey
2021 Latest Caselaw 3166 Gua

                                                                 Page No.# 1/4

GAHC010269472017




                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                         Case No. : CRP(IO)/356/2017

         LEGAL HEIRS OF LATE GANGADHAR CHOUBEY, SARASWATI DEVI and
         ORS
         W/O- LATE GANGADHAR CHOUBEYBMANKESWAR NATH CHOUBEY,, S/O-
         LATE GANGADHAR CHOUBEY, C GODAVARI DEVI, D/O- LATE
         GANGADHAR CHOUBEY, W/O- RAMAYAN UPADHAYA, RES NO. A,B AND C
         ARE R/O- VILL- BHUPATPUR, P.O- KARWATIHI BAZAR, DIST- GOPALGANJ,
         BIHAR- 841501

         2: LEGAL HEIRS OF LATE PURURSHOTTAM CHOUBEY GIRIJA DEVI
         W/O- LATE PURURSHOTTAM CHOUBEY
          B MANJU CHOUBEY
          D/O- LATE GANGADHAR CHOUBEY
         W/O- SRI RABINDRA PANDEY
          R/O- VILL- LAXMIPUR
          P.O- LAXMIPUR
          BUJUNG
          P.S- PATHEROWA
          DIST- KUSHI NAGAR
          UP- 274303
          C RANJU CHOUBEY
          D/O- LATE GANGADHAR CHOUBEY
          R/O- VILL- KARAN PATTI
          P.O- MADHOPUR
          DIST- KUSHI NAGAR
          UP- 274406 D SANGITA DEVI
         W/O- LATE BALESHWAR CHOUBEY E ABHISHEK CHOUBEY
          MINOR THROUGH BI ABOVE
          S/O- LATE BALESHWAR CHOUBEY F SWEETA KUMARI
          MINOR THROUGH B I ABOVE
          D/O- LATE BALESHWAR CHOUBEY G SALU KUMARI
          MINOR THROUGHB I ABOVE
          D/O- LATE BALESHWAR CHOUBEY
          RES. NO. A
         D
                                                                                     Page No.# 2/4

            E
            F AND G ARE R/O- VILL- BHUPATHIPUR
            P.O- KARWATIHI BAZAR
            P.S- KUCHAIKOT
            DIST- GOPALGANJ
            BIHAR- 84150

            VERSUS

            GHANASHYAM CHOUBEY
            S/O- LATE MURLIDHAR CHOUBEY, R/O- VILL- BHUPATHIPUR, P.O-
            KARWATIHI BAZAR, P.S- KUCHAIKOT, DIST- GOPALGANJ, BIHAR- 841501



Advocate for the Petitioner   : MR D C NATH

Advocate for the Respondent : MR. S P ROY




                                   BEFORE
                    HONOURABLE MR. JUSTICE DEVASHIS BARUAH

                                            ORDER

Date : 29-11-2021

Heard Mr. C Sarma, the learned counsel appearing on behalf of the petitioner.

2. This is an application under Order 227 of the Constitution of India challenging the order dated 21.06.2017 whereby the Court below observed that the objection as regards the admissibility of Exhibit B shall be decided at the time of argument.

3. The law as regards the stage at which the admissibility of a document is to be decided is no longer res-integra in view of the judgment of the Supreme Court rendered in the case of Bipin Shatilal Panchal v. State of Gujarat and anr. reported in (2001) 3 SCC 1 and more particularly, the paragraphs 9, 10, 11, 12, 13, 14 and 15 being relevant are quoted hereinbelow:

"9. But the initial alacrity shown by the trial Judge did not last long as the swiftness of the trial was bridled on account of trumpery reasons. The defence counsel questioned the admissibility of certain documents and raised objection with regard to the same. Though the trial court disallowed the objections as per an order passed on Page No.# 3/4

24-7-2000 (presumably after hearing both sides at length) the trial Judge adopted a very unwholesome procedure by stopping the trial for a lengthy period, just to enable the defence to take up that order before the High Court. Even though the prosecution brought witnesses to be examined on 8-8-2000, the trial Judge hesitated to examine them, and extended the stay granted by himself and did not choose to take the evidence of those witnesses on the said date. However, the defence failed to challenge the said order and hence the trial proceedings were resuscitated on 16-8-2000.

10. On that day the defence raised another objection regarding admissibility of another document. The trial Judge heard elaborate arguments thereon and upheld the objection and consequently refused to admit that particular document. What the prosecution did at that stage was to proceed to the High Court against the said order and in the wake of that proceeding the respondent filed an application on 9-11-2000, for enlarging him on bail on the strength of the order passed by this Court on 31-3- 2000 (extracted above).

11. We are compelled to say that the trial Judge should have shown more sensitivity by adopting all measures to accelerate the trial procedure in order to reach its finish within the time frame indicated by this Court in the order dated 31-3-2000 since he knew very well that under his orders an accused continuing in jail as an undertrial for a record period of more than seven years. Now, we feel that the Additional Judge, whether the present incumbent or his predecessor, was not serious in complying with the directions issued by this Court, though the parties in the case have also contributed their share bypassing the said direction.

12. As pointed out earlier, on different occasions the trial Judge has chosen to decide questions of admissibility of documents or other items of evidence, as and when objections thereto were raised and then detailed orders were passed either upholding or overruling such objections. The worse part is that after passing the orders the trial court waited for days and weeks for the parties concerned to go before the higher courts for the purpose of challenging such interlocutory orders.

13. 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 fallout 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 the revisional court, when the same question is recanvassed, 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 Page No.# 4/4

released through the course of long period to be hindrances which impede steady and swift progress of trial proceedings, must be recast or remoulded to give way for better substitutes which would help acceleration of trial proceedings.

14. When no recast, the practice which can be a better substitute in this: Whenever an objection is raised during evidence-taking stage 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).

15. 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 superiod court, when the same objection is recanvassed 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."

4. In view of the above, I do not see any illegality being committed in the impunged order dated 21.06.2017 for which an interference is being called.

5. Accordingly, the instant petition stands dismissed. No costs.

JUDGE

Comparing Assistant