Gujarat High Court

Chetanbhai Ramanbhai Desai vs State Of Gujarat on 1 September, 2021

Bench: B.N. Karia

     R/SCR.A/5677/2017                              ORDER DATED: 01/09/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/SPECIAL CRIMINAL APPLICATION NO. 5677 of 2017

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                         CHETANBHAI RAMANBHAI DESAI
                                    Versus
                          STATE OF GUJARAT & 1 other(s)
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Appearance:
MR PATHIK M ACHARYA(3520) for the Applicant(s) No. 1
MR AMAR N BHATT(160) for the Respondent(s) No. 2
MR. H.K. PATEL, APP for the Respondent(s) No. 1
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 CORAM: HONOURABLE MR. JUSTICE B.N. KARIA

                                Date : 01/09/2021

                                 ORAL ORDER

1. The petitioner, who is the accused No.18 before the Trial

Court in Criminal Case No.1522 of 2002, has challenged the

order dated 01.05.2017 passed by learned Chief Judicial

Magistrate, Valsad in Criminal Case No. 1522 of 2002 granting

permission to exhibit the documents produced by the

prosecution and rejected the objections raised by the accused

person during the course of the chief examination of the

complainant/ prosecution witness vide Exh.168.

2. Heard learned advocate for the petitioner, learned

advocate Mr. Amar Bhatt for the respondent No.2 and learned

R/SCR.A/5677/2017 ORDER DATED: 01/09/2021

APP for the respondentState.

3. It is submitted by learned advocate for the petitioner that

documents produced in chief examination of the witness

namely Mr. Jagdish Narayan Rampal Perva below Exh.168

were not in original and xerox copy of the same whereof were

being different dates and were not required to be exhibited. It

is further submitted that these documents were the print out

taken from the computer without obtaining necessary

certificate, which were necessary to produce for admission in

term of electronic documents under Section 65(B) of the

Indian Evidence Act, 1872. It was further submitted that no

certificate was produced under Section 2(8) and Section 2A of

the Bankers Books Evidence Act, and therefore, not a single

documents were admissible in evidence. It is further submitted

that witness examined by the prosecution has not stated that

why he failed to produce original documents, and therefore,

these documents cannot be admitted in evidence. As the

documents below Exh.115/23 to 115/26 are copies of the

original and is combination of several documents, which were

R/SCR.A/5677/2017 ORDER DATED: 01/09/2021

not authenticated from the original documents. That other

documents produced below Exh. 115/27 to 115/30 were also

not produced in original and with the signature of the

competent authority even true copies thereof were not carried

out from the original by the Competent Officer. That learned

Judge has committed grave error in not accepting the

objections raised by the accused below Exh.197 of the

admission of the documents of the prosecution. Learned

advocate for the petitioner in support of his arguments has

placed reliance upon the judgments reported in (2020) 7 SCC

Page No.1 and (2004) 7 SCC Page No. 107 and M.Cr. C.

No.6604 of 2017 of Madhya Pradesh. Hence it was requested

by learned advocate appearing for the petitioner to quash and

set aside the order dated 01.05.2017 passed by the learned

Chief Judicial Magistrate of Valsad below Exh. 168 with

examination in chief of Mr. Jagdish Narayan (PW1) on behalf

of the complainant in Criminal Case No. 1522 of 2002

allowing the prosecution to exhibit the documents produced by

the prosecution and rejecting the objection of the accused

R/SCR.A/5677/2017 ORDER DATED: 01/09/2021

raised below Exh.197 in criminal case.

4. From the other side learned advocate appearing for the

respondent No.2 has submitted that no relief can be granted in

favour of the petitioner as the impugned order passed by the

court below is at interlocutory stage in the criminal

proceedings pending before the subordinate court. It is further

submitted that this Court may not interfere by exercising of its

extraordinary power under Articles 14, 226 and 227 of the

Constitution of India read with Section 482 of the Code of

Criminal Procedure, 1973 especially when the case is at its

threshold and evidence is still to be recorded as per the

prosecution case. In support of his arguments, learned

advocate for the respondent No.2 has relied upon the case

reported in (1978) 4 SCC Page No. 63 as well as judgment of

this Court reported in (1999) 2 GLH Page 564.

5. Learned APP for the respondentState has supported the

arguments advanced by learned advocate appearing for the

respondent No.2 and submitted that this Court cannot exercise

the powers by interfering in the impugned order as it is passed

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at interlocutory stage. It is further submitted that petition itself

is not maintainable in the eyes of law and hence it was

requested by learned APP to dismiss the present petition.

6. Having heard learned advocates for the respective parties

and learned APP for the respondentState, undisputedly,

during the chief examination of the witness examined by the

prosecution namely Mr. Jagdish Narayan Rampal Perva, he

produced certain documents before the Court. As for the first

time, these documents were produced during the course of

chief examination of this witness, objections were raised by the

accused person below Exh. 197 as argued by the learned

advocate for the petitioner. It appears that the learned Judge

of the Trial Court was pleased to disallow the objection raised

by the accused side and permitted the prosecution to exhibit

these documents without deciding admissibility of the

documents in evidence.

7. If we consider the judgment of this Court reported in

(1999) 2 GLH Page 564, a similar issue was decided, wherein

this Court has observed as under:

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"3. Whether the Order in question can be said to be the interlocutory is the question passed before me for consideration. The expression "interlocutory Order" is not defined in Criminal Procedure Code. In Order to judge whether the particular Order is interlocutory or otherwise, the Court has to, making every endeavour, find out whether the Order in question is interlocutory Order. If it is found that the Order passed is purely interim or temporary in nature which does not decide or touch the important rights and liabilities of the parties and give a final shape to a particular point at a particular stage during the course of the hearing the same can be termed interlocutory Order. If the Order substantially affects the rights and liabilities of the parties it would not be the interlocutory Order. It may also be stated that intermediate or quasifinal Order which determines a particular issue finally at any stage of the hearing will not fall within the ambits of 'interlocutory Order'.

4. When the Court finds that a particular document tendered in evidence by the witness is duly proved in accordance with the provisions of the Evidence Act or the provisions of other Statutes applicable, the Court may exhibit the same so that the same can be considered while disposing of the matter finally. About the meaning of the word "exhibit", a question arose before the Calcutta High Court in the case of Rakhaldas Pramanick v. Smt. Shantilata Ghose and Ors. AIR 1956 Cal. 619 wherein it is made clear that "Exhibit" means a document exhibited for the purpose of being taken into consideration in deciding some question or other in respect of the proceeding in which it is filed. Let me, therefore, make it clear that the document when it is exhibited the Court while exhibiting the same does not finally decide the rights of the parties, or form any opinion, or express any opinion on the document or on the point that arises for consideration. In short, no legal complexion is given to the issues that arise for consideration. After the hearing is over, while finally adjudicating, the Court is free to discard a particular document holding that it was not duly proved or holding that the document was partly proved, namely, execution alone thereof was proved, but as the contents thereof were not proved, the same cannot be taken into account. If either of the parties later on files during the course of the hearing an application to expunge

R/SCR.A/5677/2017 ORDER DATED: 01/09/2021

the document admitted in record, the Court may hearing the parties expunge the same if it finds that the document is not legally and correctly proved and exhibited. In short, by exhibiting the document merits or demerits thereof are not dissected, and the rights and obligations of the parties are not finally decided, or legal complexion is not given to the issue that arises for consideration as giving exhibit to the document is the procedural aspect of the matter and it merely shows that document is formally proved. The rights and obligations of the parties are to be decided while finally appreciating the evidence for the purpose of pronouncing final verdict. In view of the matter, the Order passed, admitting the letters and greeting cards, in evidence can be said to be the interlocutory Order."

8. In the cited case similar issue was there giving

exhibit to the documents. As observed by this Court, this is

the procedural aspect of the matter and it merely shows

that document is formally proved. The rights and

obligations of the parties are yet to be decided while

finally appreciating the evidence for the purpose of

pronouncing final verdict. It was viewed that the order

passed admitting the letters and greeting cards in

evidence can be said to be interlocutory order. The

Hon'ble Apex Court in the judgment reported in (1978) 4

SCC Page No. 63 has held that " The High Court was right

in declining to grant relief to the appellants, as it is now