Bhavnaben D/O Mulubhai Jalu vs State Of Gujarat
2024 Latest Caselaw 3 Guj

Gujarat High Court

Bhavnaben D/O Mulubhai Jalu vs State Of Gujarat on 1 January, 2024

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 7435 of 2019

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                          BHAVNABEN D/O MULUBHAI JALU
                                     Versus
                               STATE OF GUJARAT
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Appearance:
MR MRUGEN K PUROHIT(1224) for the Applicant(s) No. 1
MR PRATIK Y JASANI(5325) for the Respondent(s) No. 2
MR SOAHAM JOSHI, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                    Date : 01/01/2024

                                     ORAL ORDER

1. This petition is filed under Article 227 of the

Constitution of India, for the following prayers:

"8(A) This Hon'ble Court may be pleased to issue an appropriate writ, order or direction to quash and set aside impugned order dated 26th June, 2019 passed by learned Principal Senior Civil Judge & Additional Chief Judicial Magistrate, Jasdan below Exh.62 in Criminal Miscellaneous Application No.155 of 2017 to an extent of not giving permanent exhibit to the said document and further may be pleased to allow the application Exh.62;

(B) Pending the admission, hearing and final disposal of this application, this Hon'ble Court may be pleased to stay the

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trial of Criminal Miscellaneous Application No.155 of 2017 pending before learned Principal Senior Civil Judge & Additional Chief Judicial Magistrate, Jasdan;

(C) xxxx"

2. The brief facts leading to filing of this petition, as

stated in the petition, are such that the petitioner got

married with respondent no.2; that the petitioner was

deserted by respondent no.2 and at present petitioner is

residing at her parental home; the petitioner filed Criminal

Miscellaneous Application under Section 125 of the Code of

Criminal Procedure for maintenance; that the respondent no.2

appeared in the mater and filed his written

statement/objection to the said application for maintenance

vide Exh.9; that the petitioner submitted her examination-in-

chief and she was cross-examined; the respondent no.2 did

not step into the witness box and has filed pursis vide

Exh.51, whereby it was declared that he does not want to

give any evidence in the matter; the petitioner examined

certain witnesses in support of her case and filed certain

applications for production of documents etc., which came to

be allowed; the petitioner filed application vide Exh.54 to

produce documentary evidence before the court below whereby

the petitioner has sought permission to produce divorce deed

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executed by respondent no.2 with one Devkuben Jayveerbhai

Vala, which was executed on 18.7.2016 as it had come to

light that during the subsistence of marriage of the

respondent no.2 with the petitioner, the respondent no.2 got

married with other lady and subsequently got divorce with

that lady; the said divorce deed was duly notarized before

the notary and therefore, the petitioner has applied vide

Exh.56 for production and examination of the notary, which

application was duly allowed by the court below; the said

notary viz. Harjivanbhai M Vadodariya came to be examined

vide Exh.59 and he produced documents Exhs.60 and 61; that

thereafter the petitioner filed application Exh.62 inter alia

requesting the court below to give exhibit to the said

document and by the impugned order, the learned Additional

Chief Judicial Magistrate, Jasdan has given tentative exhibit

by observing that the same is exhibited subject to proof and

hence this petition is filed as the Court has not adjudicated

the issue whether this document can be exhibited or not and

has, deferred the issue of proof of the said document, which

is impermissible.

3. Heard learned advocate Mr.Purohit for the

applicant, learned APP for respondent no.1 and learned

advocate Mr.Jasani for the respondent no.2.

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4. Learned advocate Mr.Purohit for the applicant has

assailed the impugned order by submitting that the trial

court was not justified in giving the tentative exhibit instead

of admitting the document in evidence though the document

in question is a certified copy of public record and the

witness has proved the same before the court, therefore,

there was no reason to give it a tentative exhibit merely

because an objection had been raised against admitting the

same.

5. In support of his submissions, the learned counsel

placed reliance upon the decision of the Privy Council in

Jadurai v. Bhubotaran Nandy, 16 Indian Appeals 148, the

decisions of the Supreme Court in Javer Chand and others v.

Pukhraj Surana, AIR 1961 SC 1655, R.V.E. Venkatachala

Gounder v. Arulmigu Viswesaraswami and V. P. Temple and

another, (2003) 8 SCC 752, Ram Rattan (dead) by L. Rs. v.

Bajrang Lal and others, (1978) 3 SCC 236 and Dayamathi

Bai (Smt) v. K. M. Shaffi, (2004) 7 SCC 107 as well as the

decision of a Full Bench of the Bombay High Court in the

case of Mr. Hemendra Rasiklal Ghia v. Subodh Mody, (2009)

1 ICC 222 (Bom) (FB). It was, accordingly, urged that the

objection to the admissibility of the document is required to

be decided at the earliest possible opportunity and the reason

therefor, is that if the court allows the objections, the party

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tendering the evidence may take such steps as may be

advised to get the lacuna remedied. It was submitted that in

the case at hand, the documents which are produced by the

witness are public documents and are relevant and duly

proved in terms of the provisions of the Evidence Act and

therefore, there was no valid reason for the trial court to

defer the decision regarding admissibility of such documents.

6. Per contra, learned advocate Mr.Jasani for the

respondent no.2 submitted that the course adopted by the

trial court is in consonance with the law laid down by the

Supreme Court in Bipin Shantilal Panchal v. State of Gujarat

reported in 2001(2) GLH 545 and therefore, it cannot be said

that there is any infirmity in the impugned order warranting

interference by this court. It was submitted that the

petitioner produced a document for exhibiting, which was

objected by the learned advocate for the opponent therein and

therefore the learned trial court gave tentative exhibit subject

to proof and therefore, till it is proved, the question of giving

permanent exhibit does not arise.

7. As can be seen from the impugned order, before

the trial court, an objection was taken by the learned

advocate for the opponent therein for exhibiting the said

document and therefore, the learned trial Court has given

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temporary exhibit to the said document subjecting it to proof.

Whether the course of action adopted by the trial court is

just and proper is the question that arises for consideration

in the present case?

8. In the facts of the case, the divorce deed was duly

notarized before the notary and the said notary was

examined and produced the documents and thereafter the

petitioner gave application to give exhibit to the said divorce

deed, which was objected by the learned advocate for the

opponent therein and therefore the said document was given

tentative exhibit subjecting it to proof.

9. At this stage, a reference to the law in this

regard will be fruitful.

10. In Bipin Shantilal Panchal v. State of Gujarat

(supra), the Supreme Court was dealing with a case where

the court had disposed of a special leave petition as the

Special Judge who was trying the case had reported to it

that he reasonably expected the trial to close within six

months, permitting the petitioner to move for bail again in

case the trial is not closed within six months. During the

course of trial, the defence raised objection to the

admissibility of certain documents and raised objections with

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regard to the same. The trial court disallowed the objections,

but thereafter stayed the trial with a view to enable the

defence to take up that order before the High Court. After

the defence failed before the High Court, the trial was

resumed, when once again the defence raised another

objection regarding the admissibility of another document. The

trial court upheld the objection and refused to admit that

particular document, whereupon the prosecution proceeded to

the High Court and in the wake of that proceeding, the

respondent filed an application for enlarging him on bail on

the strength of the earlier order passed by the Supreme

Court. In this background, the Supreme Court held thus:

"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 is continuing in jail as an under-trial 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 in bypassing the said direction.

12. As pointed out earlier, on different occasions the trial

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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 concerned parties 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 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

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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 so recast, the practice which can be a better substitute is 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

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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.

16. We, therefore, make the above as a procedure to be followed by the trial courts whenever an objection is raised regarding the admissibility of any material or any item of oral evidence."

11. In a subsequent decision in the case of Dayamathi

Bai (Smt) v. K. M. Shaffi, (2004) 7 SCC 107, the Supreme

Court held thus:

"13. We do not find merit in this civil appeal. In the present case the objection was not that the certified copy of Ex.P1 is in itself inadmissible but that the mode of proof was irregular and insufficient. Objection as to the mode of proof falls within procedural law. Therefore, such objections could be waived. They have to be taken before the document is marked as an exhibit and admitted to the record (See: Order XIII Rule 3 of Code of Civil Procedure). This aspect

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has been brought out succinctly in the judgment of this Court in R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple & Another reported in [(2003) 8 SCC 752] to which one of us, Bhan, J., was a party vide para 20:

"20. The learned counsel for the defendant-respondent has relied on Roman Catholic Mission v. State of Madras, AIR 1966 SC 1457, in support of his submission that a document not admissible in evidence, though brought on record, has to be excluded from consideration. We do not have any dispute with the proposition of law so laid down in the above-said case. However, the present one is a case which calls for the correct position of law being made precise. Ordinarily, an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in evidence may be classified into two classes: (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and

(ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as "an exhibit", an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken when the evidence is tendered and

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once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The latter proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the latter case, failure to raise a prompt and timely objection amounts to waiver of the necessity for

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insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence.

In the first case, acquiescence would be no bar to raising the objection in a superior court."

14. To the same effect is the judgment of the Privy Council in the case of Gopal Das & Anr. v. Sri Thakurji & Ors. AIR 1943 PC 83 in which it has been held that when the objection to the mode of proof is not taken, the party cannot lie by until the case comes before a Court of appeal and then complain for the first time of the mode of proof. That when the objection to be taken is not that the document is in itself inadmissible but that the mode of proof was irregular, it is essential that the objection should be taken at the trial before the document is marked as an exhibit and admitted to the record. Similarly, in Sarkar on Evidence, 15th Edition, page 1084, it has been stated that where copies of the documents are admitted without objection in the trial Court, no objection to their admissibility can be taken afterwards in the court of appeal. When a party gives in evidence a certified copy, without proving the circumstances entitling him to give secondary evidence, objection must be taken at the time of admission and such objection will not be allowed at a later stage.

15. In the present case, when the plaintiff submitted a certified copy of the sale deed (Ex.P1) in evidence and when

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the sale deed was taken on record and marked as an exhibit, the appellant did not raise any objection. Even execution of Ex.P2 was not challenged. In the circumstances, it was not open to the appellant to object to the mode of proof before the lower appellate Court. If the objection had been taken at the trial stage, the plaintiff could have met it by calling for the original sale deed which was on record in collateral proceedings. But as there was no objection from the appellant, the sale deed dated 14.11.1944 was marked as Ex.P1 and it was admitted to the record without objection." (Emphasis supplied)

12. In Mr. Hemendra Rasiklal Ghia v. Subodh Mody

(supra), a Full Bench of the Bombay High Court was

considering the question as to whether it is necessary for the

court to decide about the admissibility of documents before

they are exhibited in evidence or whether the admissibility of

evidence and proof thereof should be reserved until judgement

in the case is given. After considering the decision of the

Supreme Court in the case of Bipin Shantilal Panchal v.

State of Gujarat (supra) as well as the above referred

decision and various other decisions, the court held that: (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 objection must be

judicially determined before it is marked as exhibit; (ii)

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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; and (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

further observed that the court while trying the suit or

proceeding as far as possible is expected to decide the

admissibility or proof of document as indicated hereinabove.

The court 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 a 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.

13. Thus, the position of law that emerges from the above

decisions is that:

(i) Whenever an objection is raised during evidencetaking

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

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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. There is no illegality in adopting such a

course. However, 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.

(ii) Objection as to the mode of proof falls within procedural

law. Therefore, such objections can be waived. They have to

be taken before the document is marked as an exhibit and

admitted to the record (see Order 13 Rule 3 of the Code of

Civil Procedure).

(iii) Ordinarily, an objection to the admissibility of evidence

should be taken when it is tendered and not subsequently.

The objections as to admissibility of documents in evidence

may be classified into two classes: (i) an objection that the

document which is sought to be proved is itself inadmissible

in evidence; and (ii) where the objection does not dispute the

admissibility of the document in evidence but is directed

towards the mode of proof alleging the same to be irregular

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or insufficient. In the first case, merely because a document

has been marked as `an exhibit', an objection as to its

admissibility is not excluded and is available to be raised

even at a later stage or even in appeal or revision. In the

latter case, the objection should be taken when the evidence

is tendered and once the document has been admitted in

evidence and marked as an exhibit, the objection that it

should not have been admitted in evidence or that the mode

adopted for proving the document is irregular cannot be

allowed to be raised at any stage subsequent to the marking

of the document as an exhibit. The latter proposition is a

rule of fair play. The crucial test is whether an objection, if

taken at the appropriate point of time, would have enabled

the party tendering the evidence to cure the defect and

resort to such mode of proof as would be regular.

(iv) (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 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; and (iii) objection

to the document which in itself is inadmissible in evidence

can be admitted at any stage of the suit reserving decision

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on question until final judgment in the case.

14. Thus, while the Supreme Court in Bipin Shantilal

Panchal v. State of Gujarat (supra) has held that except in a

case where the objection relates to deficiency of stamp duty

of a document, in all other cases whenever an objection is

raised during evidence taking stage regarding the

admissibility of any material or item of oral evidence, the

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 of final judgment,

the subsequent decisions of the Supreme Court in civil cases

have classified such objections into two categories, viz., (i) an

objection that the document which is sought to be proved is

itself inadmissible in evidence; and (ii) where the objection

does not dispute the admissibility of the document in

evidence but is directed towards the mode of proof alleging

the same to be irregular or insufficient. In the first category

of cases, the view is that such objection can be raised and

dealt with at any stage of the proceedings and hence, can be

dealt with at the last stage of final judgment. However,

insofar as the second category is concerned, such objection

would be required to be raised and dealt with at the time

when such document is sought to be admitted in evidence for

the reason that if such objection, if taken and dealt with at

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the appropriate point of time, it would enable the party

tendering the evidence to cure the defect and resort to such

mode of proof as would be regular.

15. Therefore, from the above decisions, what emerges

is that when a case falls within the first category of cases,

viz., when an objection that the document which is sought to

be proved is itself inadmissible in evidence, is raised, the

procedure laid down in Bipin Shantilal Panchal v. State of

Gujarat (supra) can be followed and the court can give a

tentative exhibit number to such document and deal with the

admissibility thereof at the final stage of judgement; however,

when a case falls within the second category, viz., where the

objection which is raised does not dispute the admissibility of

the document in evidence but is directed towards the mode of

proof alleging the same to be irregular or insufficient, such

objection has to be decided at the time when it is raised as

the same would enable the party tendering the evidence to

cure the defect and resort to such mode of proof as would be

regular. It is relevant to note that the court has not

adjudicated the issue whether this document can be exhibited

or not and has defer the issue of proof of the said document

which is impermissible.

16. In the case at hand, the document sought to be

produced is a document regarding divorce which is supported

by the deposition of notary. The case, therefore, clearly falls

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within the second category of cases, viz., where the objection

which is raised does not dispute the admissibility of the

document in evidence but is directed towards the mode of

proof alleging the same to be irregular or insufficient. Under

the circumstances, such objection is required to be decided at

the appropriate time when it is raised. The approach adopted

by the trial court in giving the document a tentative exhibit

and deferring the decision on the admissibility thereof to the

last stage of final judgment would cause immense prejudice

to the petitioner, inasmuch as, if ultimately it is held that

such document is not admissible in evidence, the petitioner

would not be in a position to cure the defect and resort to

such mode of proof as would be regular.

17. In view of the above discussion, the impugned

order passed by the learned trial court giving tentative

exhibit to the document cannot be sustained. Accordingly, this

petition is partly allowed. The impugned order dated dated

th June, 2019 passed by learned Principal Senior Civil

Judge & Additional Chief Judicial Magistrate, Jasdan below

Exh.62 in Criminal Miscellaneous Application No.155 of 2017

is quashed and set aside. The learned trial court shall hear

the parties on the question of admissibility of document and

decide the same in accordance with law.

(SANDEEP N. BHATT,J) SRILATHA