Karnataka High Court
Rekha @ Siddamma And Ors vs The State Of Karnataka on 6 December, 2023
Author: K Natarajan
Bench: K Natarajan
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CRL.P No. 201730 of 2023
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 6TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE K NATARAJAN
CRIMINAL PETITION NO. 201730 OF 2023
BETWEEN:
1. REKHA @ SIDDAMMA
W/O SANNA PAKEERAPPA KONADAVARU,
AGED ABOUT 33 YEARS,
OCCUPATION: HOUSEHOLD,
R/O HIRELINGESHWARA COLONY, SUKALPET,
SINDHANUR, TALUK: SINDHANUR,
DISTRICT: RAICHUR.
2. GANGAMMA
W/O AMBANNA HEBBALLA,
AGED ABOUT 53 YEARS,
Digitally OCCUPATION: HOUSEHOLD, R/O: BUDIWALA,
signed by B
NAGAVENI TALUK: SINDHANUR, DISTRICT: RAICHUR.
Location:
High Court 3. AMARESH
Of S/O MALLAPPA BUDIWALA,
Karnataka
AGED ABOUT 48 YEARS, OCCUPATION: FARMER,
R/O: SUKALPET, SINDHANUR,
TALUK: SINDHANUR, DISTRICT: RAICHUR.
...PETITIONERS
(BY SRI. MAHANTESH PATIL, ADVOCATE)
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CRL.P No. 201730 of 2023
AND:
1. THE STATE OF KARNATAKA
THROUGH POLICE, TOWN P.S SINDHANUR,
TALUK: SINDHANUR, DISTRICT: RAICHUR - 584 101.
REPRESENTED BY ADDL. SPP
HIGH COURT OF KARNATAKA,
KALBURAGI BENCH - 585 102.
2. HULGAPPA
S/O BIRAPPA,
AGED ABOUT 35 YEARS, OCCUPATION: DRIVER,
R/O HIRELENGESWARA COLONY,
SUKAL PETITIONER COLONY, SINDHANUR,
DISTRICT: RAICHUR - 584 101.
...RESPONDENTS
(BY SRI. JAMADAR SHAHABUDDIN, HCGP FOR R-1,
NOTICE TO R-2 IS DISPENSED WITH, VIDE ORDER DATED:
06.12.2023)
THIS CRL.P IS FILED U/S.482 OF CR.P.C. PRAYING TO
ALLOW THIS PETITION AND SET ASIDE ORDER DATED
28.11.2023 IN S.C.NO. 57/2020 PASSED BY THE LEARNED III
ADDL. DISTRICT AND SESSIONS JUDGE, RAICHUR SITTING AT
SINDHANUR AND TO PASS ANY OTHER APPROPRIATE ORDERS
AS DEEM FIT IN THE CIRCUMSTANCES OF THE CASE, IN THE
INTEREST OF JUSTICE.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Learned HCGP takes notice for respondent No.1/State.
2. This petition is filed by the petitioners/accused Nos.4,
5 and 10, under Section 482 of Cr.P.C., for setting aside the
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impugned order dated 28.11.2023 in S.C.No.57/2020 passed
by III Addl. District and Sessions Judge, Raichur sitting at
Sindhanur, on the objection raised by these petitioners during
the cross examination regarding admissibility of the Ex.P.4, the
CD said to be produced and marked by the prosecution,
wherein the Trial Court deferred the admissibility of the
evidence to the final stage.
3. Heard the arguments of the learned counsel for the
petitioners and learned HCGP for the State. Issueing notice to
R-2 is hereby dispensed with.
4. Learned counsel for the petitioners has mainly relied
upon the judgment of the Hon'ble Supreme Court reported in
case of In Re: Criminal Trials Guidelines Regarding
Inadequacies and Deficiencies v. State of Andhra
Pradesh & Others, (2021) 10 SCC 598 where the Hon'ble
Supreme Court issued the draft rules to be followed the same
by all the Trial Courts with a direction. As per the direction, the
Rule No.7(v) the admissibility of the evidence shall be
considered on the same day and the same should be
maintained in the end of the deposition of the witness in
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question. Such being the case, the Trial Court followed the
earlier judgment of the Hon'ble Supreme Court, which was
already reconsidered by the Hon'ble Supreme Court in the
above said case. Hence prayed for setting aside the same and
to issue direction to Trial Court to decide the admissibility of
the document.
5. Learned HCGP objected the petition.
6. Having heard the arguments, perused the records,
and the order passed by the Trial Court, wherein, during the
recording of the evidence of P.W.1 who is the complainant, the
learned Public Prosecutor confronted the CD which was marked
at Ex.P.4 said to be collected by the Investigating Officer during
the investigation and it is part of charge sheet material.
Learned counsel for the petitioners objected the marking of the
document regarding the admissibility, since there is no
certificate under Section 65B(4) of the Indian Evidence Act,
1872 ("Evidence Act"), produced as it is a secondary evidence
and there is no primary document of the mobile phone
produced before the court. The CD was secondary evidence
which was taken out from the mobile phone and it was burnt
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from the audio clip from the mobile phone. Therefore, the Trial
Court is required to decide the admissibility of the document
before proceeding to the further examination of the witness.
7. Learned counsel for the petitioners also filed an
application to decide the matter, on that point and after
hearing the learned Public Prosecutor the Trial Court passed the
impugned order as under;
"Application dated 13.10.2023 filed by
the accused No.1, 6, 9 and 10 is hereby
rejected. It is ordered to decide the
admissibility of Ex.P.4/DVD-R in evidence at
the stage of final hearing"
8. The learned Sessions Judge, while considering the
request of the petitioner, relied upon the judgment of the
Hon'ble Supreme Court reported in Bipin Shantilal Panchal
VS State of Gujarat and Anr., reported in (2001) 3 SCC at
para 12 to 16 are as under;
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
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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 realised 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 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
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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
superior 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.
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."
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09. Learned counsel for the petitioners brought to the
notice of this court, the judgment of the Bipin Shantilal
Panchal's case stated supra has been reconsidered by the
Hon'ble Supreme Court Criminal Trials Guidelines
Regarding Inadequacies and Deficiencies In Re : v.
State of Andhra Pradesh & Others stated supra and it was
heard by the Hon'ble Supreme Court by considering the
judgment of the Bipin Shantilal Panchal's case and observed
the said judgment required for reconsideration at 15 of the
judgment and where Hon'ble Supreme Court has stated that in
the Bipin Shantilal Panchal's case, stands modified.
10. In the above terms, draft rules were also framed by
the Hon'ble Supreme Court, directed the High courts and
framed the rules and implemented the said rules at paragraph
21. As per the said Rule of the Hon'ble Supreme Court at Rule
No.7(v) regarding recording of the evidence format of witness,
it was observed as under,
"Objections by either the prosecution or
the defence counsel shall be taken note of and
reflected in the evidence and decided
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immediately, in accordance with law, or, at the
discretion of the learned Judge, at the end of
the deposition of the witness in question."
This draft rule once again came before the Hon'ble Supreme
Court and it was considered in case of Manoj and Ors Vs
State of Madhya Pradesh reported in 2022 LiveLaw (SC)
510 at paragraph 179 the Hon'ble Supreme Court by
complying the direction issued by the Hon'ble Supreme Court in
the Criminal Trials Guidelines's case stated supra and
considering the said Rule, the Hon'ble Supreme Court has
categorically held regarding admissibility of the document shall
be considered immediately, at the end of the deposition of the
said witness and it cannot be deferred at the fag end of the trial
while hearing the final arguments. Therefore, in view of the
judgment of the Hon'ble Supreme Court in the Criminal Trials
Guidelines' case, the order of the Trial Court deferring the
matter for admissibility of the evidence, the document at Ex.P.4
at the final stage required to be set aside.
Accordingly, I proceed to pass the following order;
The petition is allowed.
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The order of the Trial Court dated 28.11.2023 in
S.C.No.57/2020 passed by the learned III Addl. District and
Sessions Judge, Raichur sitting at Sindhanur, deferring the
admissibility of Ex.P4 is hereby set aside.
The Trial Court is directed to decide the objection raised
by the defence counsel regarding admissibility of the Ex.P.4-R
and pass the order at the end of the deposition as per the rule
framed by the Hon'ble Supreme Court in the above said case.
Office to intimate telephonically regarding result of the
order.
Sd/-
JUDGE
AKV
CT:SK
