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2008 DIGILAW 898 (CAL)

Supti Choudhury v. State of West Bengal

2008-09-05

ARUNABHA BASU

body2008
JUDGMENT Arunabha Basu, J.: The revisional application is directed against the order dated 13th December, 2007 passed by learned Judicial Magistrate, 2nd Court, Serampore in connection with G.R. Case No.427 of 1995 whereby and whereunder the application filed by the prosecution for exhibiting the certified copy of depositions of Dr. Jayanta Basu and Dr. Sandip Basu, recorded in connection with Matrimonial Suit No. 103/1995 was rejected. In the revisional application it is stated that the O.Ps. herein filed the report of the doctors before the learned Magistrate but did not file the evidence recorded by learned Additional District Judge in Matrimonial Suit No.103 of 1995 which contradicts their reports, as would be evident from cross-examination of those witnesses. 2. It is the contention of the petitioner that the report which was prepared by Dr. Jayanta Basu was filed before the learned Additional District Judge, Hooghly in Matrimonial Suit No.103 of 1995 and the petitioner herein raised objection to the said report and the doctor was cross-examined by the petitioner and during cross-examination many contradictions about the report could be extracted. Copy of the said reports and depositions of Dr. Jayanta Basu and Dr. San dip Basu were annexed along with this revisional application as Annexure P-2. 3. It is the contention of the petitioner that if the evidence of the above noted persons are not brought on record in connection with the criminal trial then serious prejudice will be caused to the petitioner. 4. From the document- produced along with the revisional application it appears that the report of doctor which was exhibited in connection with Matrimonial Suit No.103 of 1995 was produced during the course of trial in connection with the criminal case and the learned Magistrate allowed the same to be marked as Ext. B, as defence evidence. 5. While dealing with the application filed by the prosecution for exhibiting the evidence of the doctors in connection with the earlier proceeding learned Magistrate took into consideration about the objection of the defence. The defence objected on the ground that if the certified copies of the evidence in earlier case is marked as exhibit then the defence will be prejudiced as because defence will be deprived from cross-examination for taking contradiction of their previous statement. Defence also referred to section 145 of the Evidence Act. 6. The defence objected on the ground that if the certified copies of the evidence in earlier case is marked as exhibit then the defence will be prejudiced as because defence will be deprived from cross-examination for taking contradiction of their previous statement. Defence also referred to section 145 of the Evidence Act. 6. It further appears from the order passed by the learned Magistrate that the petitioner referred to section 77 of the Evidence Act in support of the contention that such certified copy of the evidence of witnesses recorded in earlier case will be admissible under section 77 of the Act. 7. Learned Court below was of the view that even though section 77 of the Evidence Act, is the appropriate section but the same must be read together with section 145 of the Evidence Act. The learned Court below was of the opinion that the evidence in connection with earlier suit cannot be used as public document as the same will cause prejudice to the accused who will loose the opportunity to cross-examine those witnesses in connection with their previous statement. Learned Court below also held that even though said deposition in earlier case recorded by a Court of Law the same cannot be admitted into evidence in another case automatically. The learned Court below rejected the prayer in view of the above noted reasons learned Advocate for the petitioner in support of his contention has referred to the decision of Division Bench of this Court in Sakina Khanum & Anr. vs. Laddan Saheba & ars., reported in CLJ Vol. II 218. In this decision the Division Bench of this Court held that deposition of a witness is part of the record of the acts of an official Tribunal within the meaning of section 74 of Evidence Act and the statement made in it can be proved by producing certified copy. 8. Learned Advocate for the petitioner also referred to the decision of Patna High Court in Chandreshwar Prasad Narain Singh vs. Bisheshwar Pratab Narain Singh, reported in AIR 1927 Patna 61, where the Division Bench of the said High Court after considering the scope of section 74 of the Evidence Act held that deposition of witnesses taken by an officer of a Court are public document within the meaning of section 74 of the Evidence Act. 9. 9. The learned Advocate for the petitioner has also referred to another decision of the Supreme Court in Tilkayat Shri Gouindlalji Maharaj etc. vs. State of Rajasthan & ars., reported in AIR 1963 SC 1688, wherein three Judges Bench of the Hon'ble Supreme Court held that in terms of provision under section 77 of the Evidence Act certified copy of public document is admissible in evidence without being proved by calling any witness. At para 9 of the aforesaid decision the Supreme Court rejected the contention of the Court below, where the sale deed which was produced to prove the title was not accepted on the ground that no witness was produced to prove the said document. The Supreme Court held that the document in question being a certified copy of a public document need not have been proved by calling a witness. 10. The learned Advocate for the petitioner also referred to another decision of this Court in Dalim Kumar Sain & ars. vs. Nandarani Dassi & Anr., reported in AIR 1970 Cal 292 , where a Single Judge of this Court while dealing with provision under sections 35 and 77 of the Evidence Act held that when the certified copy signed by Chief Executive Officer of Municipal Corporation is produced, the same is automatic evidence as public document under the conjoint effect of sections 35 and 77 of the Evidence Act. 11. It is the contention of the learned Advocate for the petitioner that when the learned Magistrate accepted in evidence the report of the doctor, which was produced in connection with the earlier matrimonial suit, the evidence of the said doctor should have been admitted into evidence otherwise the prosecution case would suffer as because admissible evidence was rejected by the learned Court below. It is evident from the order dated 12th March, 2002 the learned Court below admitted into evidence that documents filed by the prosecution as well as by the accused persons and marked the respective documents as Ext. 4 and Ext. B. Exhibit B which was admitted into evidence by the learned Magistrate in connection with G.R. 427 of 1995 is the report submitted by Dr. Jayanta Basu. Psychiatrist District Hospital. Hooghly which was produced and marked as exhibit in connection with Matrimonial Suit No. 103 of 1995. 12. 4 and Ext. B. Exhibit B which was admitted into evidence by the learned Magistrate in connection with G.R. 427 of 1995 is the report submitted by Dr. Jayanta Basu. Psychiatrist District Hospital. Hooghly which was produced and marked as exhibit in connection with Matrimonial Suit No. 103 of 1995. 12. Learned Advocate appearing for the O.P., however, submitted that the evidence of one case cannot be taken into consideration as evidence in another case. In support of his contention he cited a decision of the Supreme Court in Mitthulal & Anr. vs. State of Madhya Pradesh, reported in 1975 SCC(Cri) 93. The Supreme Court in this case held that when the High Court while deciding the appeal based its conclusion not only on the evidence' recorded in that case against the appellants but also took into account the evidence recorded in the cross case against the complainant such an approach on the part of High Court was clearly impermissible. 13. After going through the order passed by the learned Court below, it appears, that learned Magistrate rejected the prayer only on the ground, that if the certified copy of earlier evidence is admitted into evidence in connection with criminal trial, defence will be deprived of their right of cross-examination in order to take contradictions of the previous statements of the said person. It appears to me that learned Magistrate only took into consideration about prejudice that may be caused to the defence, if the certified copy of the earlier statement is admissible into evidence. 14. In Sakina Khanum's case (supra) it is already decided that the deposition of a witness is a part of the record of the act of an official Tribunal within the meaning of section 74 of the Evidence Act and a statement made in it can be proved by a certified copy. 15. Section 74 of the Evidence Act deals with public document and section 77 of the Evidence Act prescribes the mode about proof of public documents by production of certified copies. In view of the clear language of the provisions of Indian Evidence Act the certified copy of statement of witnesses recorded in earlier case would be admissible into evidence. 16. Section 145 of the Evidence Act deals with cross-examination as to previous statement in writing. The said section is reproduced below: "145. In view of the clear language of the provisions of Indian Evidence Act the certified copy of statement of witnesses recorded in earlier case would be admissible into evidence. 16. Section 145 of the Evidence Act deals with cross-examination as to previous statement in writing. The said section is reproduced below: "145. Cross-examination as to previous statements in writing.-A witness may be cross-examined as to previous statements made by him in writing or .reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him." In view of the language of section 145 of the Evidence Act it is clear that the same cannot stand as a bar in admissibility of public document within the meaning of sections 74 and 77 of the Evidence Act. Whether the defence requires to cross-examine any witness cap only be decided when the trial has reached at a stage, where after examination of accused under section 313 of the Code of Criminal Procedure an opportunity is given to the defence to produce witnesses, if any. The instant case is triable as a warrant case and for the purpose of defence witness or evidence for defence section 243 of the Code of Criminal Procedure would be applicable. 17. Lastly, in view of the decision of the Supreme Court I am of the view that learned Magistrate should have taken into consideration the decision of three Judges Bench of Supreme Court in Bipin Shantilal Panchal vs. State of Gujarat & Anr., reported in AIR 2001 SC 1158 . In this decision the Hon'ble Supreme Court took into consideration about the archaic practice followed by the lower Court in the evidence collecting stage and directed that henceforth a particular procedure will be followed at the stage of recording of evidence, whenever any objection is raised about admissibility or relevancy of the evidence sought to be introduced by any of the party to that case. 18. It will be appropriate to refer to paragraphs 12, 13, 14 and 15 of the aforesaid decision which may act as future guidance to the learned Court below: "12. 18. It will be appropriate to refer to paragraphs 12, 13, 14 and 15 of the aforesaid decision which may act as future guidance to the learned Court below: "12. 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 period to be hindrances which impede steady and swift progress of trial proceedings, must be recast or re-moulded to give way for better substitutes which would help acceleration of trial proceedings. 13. 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 marked the objection 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 the objections the procedure suggested above can be followed.) 14. 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 the objections the procedure suggested above can be followed.) 14. The above procedure, if followed, will have two advantages. First is that the time in the Trial Court during evidence taking stage, would 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 judgement 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. 15. 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." 19. In view of the direction passed by the Supreme Court, the revisional application is disposed of with the direction that learned Court below shall admit into evidence the certified copy of statements which was rejected by him by his order dated 13.12.2007 after recording necessary objection strictly in terms of the direction passed by the Hon'ble Supreme Court in Bipin Shantilal Panchal's case (supra). 20. The order under challenge is hereby set aside. The learned Court I below is directed to proceed with the matter in the light of direction passed, in the body of order and thereafter to proceed with the trial as expeditiously as possible. 21. The revisional application is disposed of in the manner as directed above. In view of disposal of the revisional application no separate order is required to be passed on the application being CRAN 1776 of 2008 which is filed by the O.P. herein for vacating the order of stay. The application being CRAN 1776 of 2008 stands disposed of along with this revisional application. 22. There shall be no order as to costs. The application being CRAN 1776 of 2008 stands disposed of along with this revisional application. 22. There shall be no order as to costs. 23. Criminal Section is directed to forward a copy of this order to the learned Court below. 24. Criminal Section is also directed to supply urgent photostat copy of the order to the parties as and when applied for. Revisional application disposed of.