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2001 DIGILAW 394 (PAT)

Dhirendra Singh v. State Of Bihar

2001-04-30

S.K.CHATTOPADHYAYA

body2001
Judgment S.K.Chattopadhyaya, J. 1. Heard learned counsel for the petitioners, the State and opposite party No. 2 and with their consent, this application is being disposed of at the admission stage. 2. In this application prayer has been made to set aside the order dated 23.3.2000, by reason of which the learned Magistrate has closed the defence case. 3. The question is to be decided in this case is as to whether in view of Section 294 of the Code of Criminal Procedure, 1973 on mere admission of genuineness of any document by the prosecution the said document can be read in evidence without there being any application by either party to call upon the other party to admit or deny the genuineness of such document ? 4. The facts of this case in nut shell is that after the prosecution case was closed on 17.9.1998 statements of the petitioners-accused were recorded under Section 313 of the Code of Criminal Procedure (in short, the Code) on 25.9.1998. The case was fixed on 10.11.1998 for defence and on that date the petitioners filed copies of formal FIR and fardbeyan of Agam Kuan P.S. Case No. 293 of 1994, i.e. the case lodged by petitioner No. 1 and requested the Court to mark them in accordance with law after getting the original documents called for from the Court of the Judicial Magistrate. The trial Court without calling for the original documents marked the copies as Exhibit A (the formal FIR) and Exhibit A/1 (the fardbeyan). On 25.11.1998 the petitioners filed two petitions, one for getting the final report arising out of Sultanganj P.S. Case No. 290 of 1994 marked as the original final report was missing from the record and the second petition was with a prayer to call for joint supervision notes of both the cases of the A.S.P., Miss Preeta Verma and Mr. R.S. Bhatti, the City S.P. Patna and also the prosecution report under Sections 182/211 of the Penal Code, against opposite-party No. 2. The Magistrate marked the copy of the final report as Exhibit B in absence of the original and adjourned the case to 9.12.1998 for rejoinder by the complainant opposite-party No. 2. The rejoinder was filed by opposite party No. 2 on 21.12.1998 and the case was adjourned to 5.1.1999 for orders. The Magistrate marked the copy of the final report as Exhibit B in absence of the original and adjourned the case to 9.12.1998 for rejoinder by the complainant opposite-party No. 2. The rejoinder was filed by opposite party No. 2 on 21.12.1998 and the case was adjourned to 5.1.1999 for orders. By order dated 8.1.1999 the petition dated 25.11.1998 filed by the petitioners was rejected and against that the petitioners moved this Court in Cr. Misc. No. 6023 of 1999. This Court set aside the said order and directed the trial Court to pass necessary orders for calling the documents as prayed for. In compliance of the said order, the Magistrate called for the supervision note from the Court of the Additional Chief Judicial Magistrate and the case was further adjourned. On 11.11.1999, the complainant filed a petition purported to be under Section 294(3) of the Code stating therein that he has no objection to mark the copies of the documents called for by the accused-persons and on 8.12.1999 the Magistrate allowed the prayer of the complainant and marked the supervision note and photo copy of the prosecution report as Exhibits A and B, respectively. On 14.3.2000 the petitioners again filed two petitions, one for summoning the City S.P., Mr. R.S. Bhatti, to produce certain documents namely, Memo No. 5034/C.R. dated 18.10.1995 from the office of the City S.P. Patna. In their second petition the petitioners prayed for calling for original supervision note of Miss Preeta Verma, the then ASP Patna City, original charge-sheet of Agam Kuan P.S. Case No. 293 of 1994 and original injury report of the accused Dhirendra Singh. He also prayed for summoning certain police officials. These two prayers have been rejected by the impugned order by the learned Magistrate. 5. Learned counsel for the petitioners submits that under Section 294(1), when the petitioners filed the documents they did not file any petition calling upon the prosecution either to admit or deny the genuineness of those documents and unless such petition is filed the documents could not have been exhibited merely on the admission by the prosecution side about genuineness of those documents. In support of his argument learned counsel has relied on the decisions in the case of M.C. Agrawal V/s. State of Rajasthan, reported in 1994 (3) Crimes 577 , in the case of Rasa Deo Yadav and others V/s. State of Bihar, reported in 1988 Cr LJ 1431, and in the case of June alias Arjun Mandi V/s. State of West Bengal, reported in 1986 East Cr C 834 (Cal). 6. Learned counsel for opposite- party No. 2 as well as the State, on the other hand, countered this argument by submitting that where the genuineness of any document is not disputed, such document may be read in evidence and admittedly in this case genuineness of the documents filed by the petitioners have not been disputed either by the Public Prosecutor or by the informant. According to them, when those documents have already been exhibited without any objection, those could be read in evidence by the trial Court. They further contend that from the records of the case it is manifestly clear that in a criminal case of 1994 where charge was framed in 1998 the petitioners are trying to linger the disposal of the trial by filing such frivolous application, from time to time. 7. To appreciate the argument advanced by the learned counsel for the parties provision to Section 294 is to be looked into, which reads thus : "294. (1) Where any document is filed before any Court by the prosecution or the accused, the particulars of every such document shall be included in a list and the prosecution of the accused, as the case may be, or the pleader for the prosecution or the accused, if any, shall be called upon to admit or deny the genuineness of each such document. (2) The list of documents shall be in such form as may be prescribed by the State Government. (3) Where the genuineness of any document is not disputed, such document may be read in evidence in any inquiry, trial or other proceeding under this Code, without proof of the signature of the person to whom it purports to be signed : Provided that the Court may, in its discretion, require such signature to be proved." This section is a new one inserted in the Code of 1973, with sole object to shorten the proceedings. This section provides the mode or manner in which the documents relied upon by the prosecution and defence can be proved without any formal proof thereof. Not only that, proviso to this section, however, gives discretion to the Court to call for the proof of the signature on the documents. Sub-section (1) of Section 294 contemplates that where any document is filed before any Court by the prosecution or the accused and the prosecution or the accused, as the case may be, shall be called upon to admit or deny the genuineness of each such document. The words "shall be called upon" are very significant. According to the petitioners counsel these words mean that after filing of the documents the concerned party must file a petition calling upon the other side either to admit or deny the genuineness of the same. According to him when no such application is filed, the other party cannot suo motu come forward and say that he has admitted or denied the genuineness of the same. 8 In my view, this submission of the learned counsel does not hold good in view of the provisions mentioned in sub-section (3) of Section 294, which inter alia, means that where the genuineness of any document is not disputed, such document may be read in evidence in any inquiry, trial or other proceeding under this Code without proof of the signature of the person to whom it purports to be signed. This sub-section, in my view, does not restrain the either party to admit the genuineness of any document till any formal application is filed by a party along with documents filed by him. 9. As noticed above, the very intention of the legislature in enacting this provision is to expedite the disposal of the trial by shortening the proceedings. If the Court is to agree with the submission of the learned counsel for the petitioners that filing of a formal petition is a condition precedent for admitting or denying the genuineness of the document by other party, then in a given case wherein order to delay in disposal of the trial an accused files certain documents under Section 294(1) but deliberately does not file any such formal application, then the very purpose of inserting sub-section (3) of Section 294 will be frustrated. In such situation neither the Court nor the prosecution can compel the accused to file a formal petition under Section 294(1). This, in my view, cannot be the intention of the legislature in enacting this new section. 10. In the case of M.C. Agrawal (supra) certain documents were produced before the Court at the instance of the petitioner. A request was made thereafter that the prosecution may be asked to admit or deny the genuineness of the various documents under Section 294. This prayer was rejected by the Court. In such situation the Raj as than High Court observed that ".....the learned trial Judge was not right in saying that the prosecution could not be asked to admit or deny the documents genuineness before framing of the charge". Thus, it appears that the ratio of the said decision has no bearing in the instant case. In the case of Ram Deo Yadav and others [supra] this Court has held that where doctor was not examined, injury report submitted by him cannot be used by the prosecution to prove the injuries under Section 294. Similar view has been expressed by the Division Bench of the Calcutta High court in the case of June alias Arjun Mandi (supra), where the Court held that the post- mortem report cannot be taken in evidence unless Doctor, who performed post-mortem examination is examined before the trial Court. In my view the facts and circumstances of those two cases are quite different. 11. On the other hand in the case of Kishan and others V/s. State of Maharashtra, reported in 1970 (3) SCC 35 , the Apex Court was of the view that it was open to the trial Court to decline to summon a witness after recording its reason for the refusal. Argument in that case was advanced before the Supreme Court that prayer for production of the police diary was wrongly disallowed by the trial Court and the prosecution purposely withheld from the Court an important eyewitness. Argument in that case was advanced before the Supreme Court that prayer for production of the police diary was wrongly disallowed by the trial Court and the prosecution purposely withheld from the Court an important eyewitness. The Full Bench of the Rajasthan High Court in the case of Shabbir Mohammad V/s. State of Rajasthan, 1996 Cr LJ 2015, considering almost similar facts and circumstances answered the references by holding that "..........if the genuineness of any document produced by the prosecution or the accused is admitted by the opposite-party, when called upon to do so under sub-section (1) of Section 294 of the Code, in view of sub-section (3) of Section 294 of the Code, it can be read by the Court as a substantive piece of evidence for deciding the issue pending before..." with its probative value being the same as it would have had if it had been proved by the party concerned on its genuineness having been disputed by the opposite-party when called upon to do so under subsection (1) of Section 294 of the Code..." 12. In the instant case the impugned order shows that in the light of the order of this Court necessary documents have already been called for and exhibited on 8.12.1999, 18.1.2000, 2.2.2000 and 7.3.2000, but thereafter also the petitioners in order to delay the disposal of the trial filed petition of this nature. Thus, the prayer of the petitioners was rejected. The trial Court directed the case to be placed for argument on 1.4.2000 and the learned counsel is not in a position to inform the Court as to whether the argument has been concluded and judgment has been delivered. 13. Considering the facts and circumstances of the case, I am not inclined to interfere with the impugned order dated 23.3.2000 and accordingly this application is dismissed.