Madras High Court

Mohanasundharam vs The State Rep By on 28 February, 2025

Author: M.Nirmal Kumar

Bench: M.Nirmal Kumar

                                                                                                    Crl.R.C.No.350 of 2025


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                        DATED : 28.02.2025

                                                                CORAM:

                                       THE HON'BLE MR.JUSTICE M.NIRMAL KUMAR

                                                    Crl.R.C.No.350 of 2025
                                                              and
                                                    Crl.M.P.No.3506 of 2025

                     Mohanasundharam                                                   ... Petitioner/A1

                                                                  Versus

                     The State rep by
                     The Inspector of Police,
                     Directorate of Vigilance and Anti-Corruption,
                     Chennai.                                                          ... Respondent/Complainant

                     PRAYER: Criminal Revision Petition filed under Sections 438 r/w 442 of
                     BNSS, praying to call for the records and set aside the order passed by the
                     Special Court for PC Act Cases, Chennai dated 14.02.2025 in
                     Crl.M.P.No.13 of 2025 in C.C.No.6 of 2015 dismissing the petition filed by
                     the petitioner and be directed to adjudicate the admissibility prior to
                     proceedings with the final arguments.
                                       For Petitioner         : Mr.K.P.Anantha Krishna
                                                                for Ms.K.Jayavarthini

                                       For Respondent         : Mr.S.Udaya Kumar
                                                                Government Advocate (Crl. Side)

                     Page No.1 of 18



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                                                                                            Crl.R.C.No.350 of 2025




                                                                 ORDER

The petitioner/A1, who is facing trial in C.C.No.6 of 2015 for

offences under Sections 7 r/w 13(2) r/w 13(1)(d) of the Prevention of

Corruption Act, had objected to marking of Exs.30 to 35, which are per se

inadmissible. These documents were marked through PW19/Investigating

Officer, who examined in chief and cross examined in detail. The evidence

was closed on 28.02.2023 on both sides and the case was posted for

arguments before the trial Court. At that stage, the prosecution filed a

petition under Section 311 of Cr.P.C. in Crl.M.P.No.606 of 2023 to recall

PW19 for marking of few documents as exhibits. The same was allowed by

the trial Court, PW19/Investigating Officer further examined in chief and

marked Exs.P30 to P35.

2.PW19 in his cross examination admitted that Exs.P32 to P34 were

not seized through mahazar or received recording memo, request of the

Investigating Officer, the documents were produced. He also admits that

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there is no record as to who produced the documents and what was the

documents and what for it was collected. He further admits that these

documents are photostat copies not original and there is no authentication.

In view of the above, the secondary documents cannot be marked without

giving reasons as to why the primary document unable to be marked and

substituting it by secondary document. There is a procedure in the Evidence

Act, this procedure not followed. Hence, the petitioner filed Crl.M.P.No.13

of 2025 before the trial Court to decide the objections raised on

admissibility of the documents, viz., Exs.P30 to P35, but the trial Court not

considered the petitioner's objection. In contrary to the judgments and

directions of the Hon'ble Apex Court, the trial Court had given a finding

that the objections can be considered at the time of judgment. Aggrieved by

the said order, the present revision is filed.

3.The learned counsel for the petitioner made detailed arguments

submitting that Ex.P30 is the xerox copy of suspension order of the

petitioner issued in G.O.(2D) No.49 dated 19.07.2014, Ex.P32 is the

Extracts (2 papers) of PR Book maintained in District Revenue Office,

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Ex.P33 is the Extracts (2 papers) of RBI Challan Register maintained in

District Revenue Office, Ex.P34 is the Extracts of document receipt register

maintained in District Revenue Office and Ex.P35 is the xerox copy of

Special Power of Attorney No.4/2011. He further submitted that though the

witnesses from the District Revenue Office, Chennai Collectorate examined,

attention of the witnesses not drawn to these documents. Further no

witnesses had spoken about the same and there is no evidence to show that

these documents are voluminous and unable to be transported and for that

reason photostat copies produced. Further, there is a procedure to produce

the secondary document. There is no attestation or certificate by the

concerned officer to certify the truthfulness and authenticity of the

document. In such circumstances, allowed these documents to be marked

through the Investigating Officer, who admits that he received these

documents and produced the same. He is neither authority of the documents

nor dealt with the documents. Hence, the relevancy, admissibility and

acceptability of the documents is questionable, which the trial Court ought

to have decided at the first instance as per the rulings of the Hon'ble Apex

Court.

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4.In support of his contention, the learned counsel relied upon the

decision of the Hon'ble Apex Court in the case of In Re: To Issue Certain

Guidelines Regarding Inadequacies and Deficiencies in Criminal Trials

vs. The State of Andhra Pradesh and Others reported in 2022 Cri LJ 1602,

wherein the Apex court held that the view taken in Bipin Shantilal Panchal

vs. State of Gujarat and Others reported in (2001) 3 SCC 1 should not be

considered as binding. Following the Full Bench order of the Hon'ble Apex

Court, the High Court of Madras amended the Criminal Rules of Practice in

Rule 42, wherein, Rule 42(7) and Rule 42(13) were added in the year 2023

and the same are extracted hereunder:

“Rule 42. ...

...

(7) Objections by either the prosecution or the defence counsel shall be taken note of and reflected in the evidence and decided immediately, in accordance with law or at the discretion of the learned Judge, at the end of the deposition of the witness in question.

(13) The Presiding Officers shall ensure that only admissible portion of Section 8 or Section 27 of the Indian

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Evidence Act, 1872 (Act 1 of 1872) is marked and such portion alone is extracted on a separate sheet and marked and given an exhibit number”

The trial Court not considered the same but relied upon the judgment in the

case of Bipin Shantilal Panchal, which has been overruled.

5.The learned Government Advocate (Crl. Side) on the other hand

submitted that in this case, the prosecution filed Crl.M.P.No.606 of 2023 to

recall the Investigating Officer/PW19, which was allowed and the

Investigating Officer examined on 29.11.2023. On that day, Exs.P30 to P35

marked and it was objected by the petitioner. He fairly submitted that these

documents are photostat documents. During the further cross examination,

the Investigating Officer admits that these documents not seized by way of

mahazar or memo and the person, who submitted the documents not

examined as witness and he collected the documents and produced the

same. The petitioner can very well argue the relevancy, admissibility and

acceptability of the same at the time of final arguments. The petitioner

raised his objection at the belated stage during arguments and the case is

pending around 10 years and not to further protract the trial. The trial Court

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dismissed the petition and the case is at the penultimate stage. In support of

his contentions, the learned Government Advocate relied upon the following

decisions:

1) Bipin Shantilal Panchal vs. State of Gujarat and Others reported in (2001) 3 SCC 1;

2) R.V.EVenkatachala Gounder vs. Arulmigu Viswesaraswami & V.P. Temple and another reported in (2003) 8 SCC 752;

3) Shalimar Chemicals Works Limited vs. Surendra Oil & Dal Mills (Refineries) and Others reported in (2010) 8 SCC 423;

4) Babita Satpathy @ Mishra vs. Sitanshu Kumar Dash and Others reported in Manu/OR/0654/2022

6.The learned Government Advocate (Crl. Side) submitted that the

Apex Court in the case of Bipin Shantilal Panchal held that whenever an

objection is raised during evidence-taking stage regarding admissibility of

any material or any 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 and at the final stage, if the objection so raised is sustainable the

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Judge or Magistrate can keep such evidence excluded from consideration

and there is no illegality in adopting such a course.

7.The Apex Court in the case of R.V.E.Venkatchala Gounder,

referring to the decision of Roman Catholic Mission vs. State of Madras

reported in AIR 1966 SC 1457, observed that 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. It is further held that out of the two types of objections, in the

latter case, failure to raise a prompt and timely objection amounts to waiver

of the necessity for 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 superior

Court. Further, the Apex Court referred to the decision in the case of

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P.C.Purushothama Reddiar vs. S.Perumal reported in (1972) 1 SCC 9,

wherein it is held that when the documents were marked without any

objections, it is not thereafter open to the parties to object to their

admissibility.

8.In the case of Shalimar Chemicals Works Limited, the Apex Court

followed the decision in the case of R.V.E.Venkatachala Gounder.

9.In the case of Babita Satpathy @ Mishra, the High Court of Orissa

following the decision in the case of Bipin Shantilal Panchal, held that if

the objections raised by the petitioner with regard to admissibility of

secondary evidence and the secondary evidence being accepted, the exhibits

can be rejected in the judgment itself and the same requires no consideration

at pre-argument stage.

10.The learned counsel for petitioner objected to the contention of the

learned Government Advocate submitting that the impugned order came to

be passed on 14.02.2025. Challenging the impugned order, the petitioner

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filed this revision before this Court on 20.02.2025, i.e. within a period of 6

days and thereafter it was not listed and took some time for listing. The

petitioner filed a petition before the trial Court under Section 309 of Cr.P.C.

in Crl.M.P.No.35 of 2025 on 21.02.2025, giving S.R. Number details of the

Criminal Revision Petition filed before this Court. Recording the same,

Crl.M.P.No.35 of 2025 was dismissed and the case was posted for

arguments on the side of accused on 25.02.2025. It is also recorded that the

Public Prosecutor argued the case. Thereafter, on 25.02.2025, both the

accused were present and again the petitioner submitted listing of the

revision before this Court is likely to be done in a day or two and sought for

time, but the trial Court not considered the same and posted the case for

judgment on 04.03.2025. Further without hearing the petitioner's arguments,

it records that in the interest of justice the petitioner is given liberty to file

written arguments before the date of judgment. Thus, making it clear the

Trial Court on a preconceived notion even without hearing the argument sof

the petitioner decided to deliver judgment, which is not proper.

11.On the arguments advanced and on perusal of the materials

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produced by either side, this Court finds that the contention of the learned

Government Advocate (Crl. Side) referring to various citations appears

primarily following the decision in the case of Bipin Shantilal Panchal.

This decision was considered and had a re-look in the case of RE: To Issue

Certain Guidelines Regarding Inadequacies and Deficiencies in Criminal

Trials vs. The State of Andhra Pradesh and others [Suo Motu Writ(Crl.)

No.(S) 1/2017 dated 20.04.2021], wherein the Apex Court had observed

that the practice adopted by the Trial Court is guided by the decision in

Bipin Shantilal Panchal vs. State of Gujarat with respect to objections

regarding questions to be put to witnesses and marking of

documents/exhibits. The Apex Court in the case of Bipin Shantilal

Panchal termed the practice of deciding the objections, immediately as

“archaic” and proceeded to find that if such objections are entertained it

would only impede steady and swift progress of trial proceedings. Further,

it had observed that 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

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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.) 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.”

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12.This procedure was faulted in the case of RE: To Issue Certain

Guidelines Regarding Inadequacies and Deficiencies in Criminal Trials,

wherein it is pointed out that due to the practice mandated in Bipin

Shantilal Panchal, such material not only enters the record, but even causes

prejudice, which is greatly multiplied when the appellate court has to decide

the issue. Frequently, given that trials are prolonged, the trial courts do not

decide upon these objections at the final stage, as neither counsel addresses

arguments. Therefore, it is submitted that the rule in Bipin Shantilal

Panchal requires reconsideration. Further, it was held that the view in Bipin

Shantilal Panchal should not be considered as binding. The presiding

officer therefore, should decide objections to questions, during the course of

the proceeding, or failing it at the end of the deposition of the concerned

witness. Accordingly, the practice mandated in Bipin Shantilal Panchal

shall stand modified.

13.Following the same, this Court on the administrative side

recommended for amendment to Rule 42 of Criminal Rules of Practice

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wherein Sub-Rules (7) and (13) were added in the year 2023.

14.Further, this Court in the case of G.Subbaraman vs. State rep. by

Inspector of Police, SPE, CBI, ACB, Chennai reported in 2018 SCC

Online Mad 354, finding that the Trial Courts are not following the

directions issued by the Apex Court and the amendment brought in Rule 42

of Criminal Rules of Practice, held as follows:

“47.Before parting, this Court wish to add, atleast

in future both the prosecution as well as the trial Court

shall be careful while receiving photocopies of the

documents. The trial Court should ensure whether the

conditions laid in Section 65 of the Evidence Act are

fulfilled before receiving the Secondary Evidence. In this

Case, right from marking of the Ex.P.1, the defence has

objected for marking of photocopy document. Neither the

prosecution nor the Court had addressed the objection

immediately. This has caused miscarriage of justice. This

Court hopes that atleast herein after the Court below be

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abreast of the legal position in admitting the Secondary

evidence, especially the photocopies and act accordingly.

This Court also hasten to add, the acquittal in the

Criminal prosecution shall have no bearing on the

departmental enquiry against A1 or the civil proceedings

pending for recovery of money.”

15.Despite the decisions of the Apex Court, amendment in the

Criminal Rules of Practice and this Court directions, it is seen that the same

has not precluded and followed in breach by the Courts below. The

respondent neither produced original documents at any time nor any factual

foundation laid for giving secondary evidence. The secondary evidence

must be authenticated by foundational evidence that the alleged copy is in

fact a true copy of the original. Mere admission of a document in evidence

does not amount to its proof. The Court has an obligation to decide the

question of admissibility of a document in secondary evidence before

marking endorsement thereon.

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16.In view of the above, the impugned order passed in Crl.M.P.No.13