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2009 DIGILAW 1212 (KER)

Nambi Narayanan v. State of Kerala

2009-12-18

S.S.SATHEESACHANDRAN

body2009
Judgment : The Writ Petition is filed seeking mainly the following reliefs: 1. That all records relating to Exhibit P5 be called to this Hon'ble Court and an order be passed setting aside Exhibit P5 order. 2. That the lower court be directed to mark the documents detailed in Exhibit P3 and proceed with the trial of the case. 3. That all further proceedings in O.S.No.370 of 2003 on the file of the Sub Court, Thiruvananthapuram be stayed pending disposal of this Writ Petition. 2. Petitioner is the plaintiff in O.S.No.370 of 2003 on the file of the Sub Court, Thiruvananthapuram. Suit was one for damages, and the respondents are the defendants. The trial of the case is now in progress. Petitioner/plaintiff as part of his evidence sought for exhibiting some documents which were referred to and marked in his affidavit filed before the court in lieu of his examination in chief. Marking and exhibiting of some of the documents referred to in the affidavit in evidence was objected to by the respondents/defendants. The learned Sub Judge, after hearing both sides, declined the marking of some of the documents produced by the plaintiff, and referred to in his affidavit, vide P5 order. Propriety and correctness of P5 order is challenged in the writ petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 3. I heard the counsel on both sides. Suit for damages against the Government, both State and Central and a number of police officials, was laid by the petitioner/plaintiff alleging that falsely implicating him in a crime case, more particularly, an espionage case, popularly known as 'ISRO spy case', he was subjected to torture and police excess and that his reputation was damnified. Suit claim was resisted by the respondents filing written statements, in which maintainability of entertaining the claim for damages had also been challenged. For disposal of this writ petition, the limited question emerging for consideration being the correctness of P5 order passed by the learned Sub Judge declining the request of the petitioner/plaintiff to mark some documents produced by him in evidence, and that alone, advertance to the pleadings of the parties with respect to the case canvassed for the suit claim or defence raised to resist such claim is not called for. P5 order would disclose that among the documents produced by the petitioner/plaintiff, learned Sub Judge found five of them, which have been referred to as A1, A4, A6, A7 and A9, cannot be marked and admitted in evidence at this stage of the suit. A1 is a statement prepared by a doctor as to the physical condition of the petitioner/plaintiff while he was in custody of the police, but, prepared at a later point of time; A4 is a note file containing inter departmental communications relating to an enquiry as against acts/omissions of the defendants (police officials) in connection with the case proceeded against the plaintiff; A6 and A7 are news papers containing reports damnifying the petitioner/plaintiff which are alleged to have been planted by the police officers investgating the case, and, A9, a copy of an open letter purported to have been issued by a number of eminent persons including scientists taking exception to the maltreatment and excesses allegedly, meted out to the plaintiff. The learned Sub Judge, after examining the relevancy of the materials referred to above with respect to its marking and admissibility in evidence, forming a conclusion that these documents cannot be marked through the plaintiff, but, only through witnesses, after their examination, who have direct knowledge over such documents. 4. P5 order of the learned Sub Judge declining the marking of the documents is assailed by Adv.Sri.G.S.Raghunath, learned counsel appearing for the petitioner, contending that declining the marking of such materials at the stage when the plaintiff is being examined would deprive him an opportunity to lead evidence on the various facets of his case which are required to be established by tendering necessary materials to sustain the suit claim. The learned Sub Judge was not correct, according to the learned counsel, in holding that marking of the documents referred to in P5 order can be allowed only after examining the witnesses who have direct knowledge over the contents of such documents. The learned Sub Judge was not correct, according to the learned counsel, in holding that marking of the documents referred to in P5 order can be allowed only after examining the witnesses who have direct knowledge over the contents of such documents. Reliance is placed by the learned counsel on the decision rendered by the apex court in Bipin Shantilal Panchal v. State of Gujarat (AIR 2001 S.C. 1158), and two decisions of High Court of Karnataka, namely, K.Anjaneya Setty v. K.H.Rangiah Setty (AIR 2002 Karnataka 387) and Lakshmamma v. Rathnamma (2003 AIHC 857) to contend that the proper course to be followed by the court when objections are raised over the documents produced would be to mark the documents subject to objections raised by the opposite party relegating the consideration of the admissibility of the documents at final hearing. On the other hand, Adv. S. Gopakumaran Nair, learned Senior Counsel appearing for the 6th respondent, stressing upon that the exercise of visitorial jurisdiction of this court, in the given facts of the case, is not called for to test the correctness and merit of P5 order as the learned Sub Judge has not forclosed the right of the plaintiff in getting the documents admitted in evidence subject to examination of competent witnesses, contended that marking of these documents through the plaintiff at this stage would cause serious prejudice and injury to the defendants. Learned senior counsel pointed out that inter departmental communications, newspaper reports, opinion rendered by a doctor, comments by some scientists by way of an open letter etc. are sought to be introduced as evidence in the case through the plaintiff without necessary proof as to the authenticity of the materials and its relevance in considering the disputed issues arising for adjudication in the suit. Such documents can be marked and admitted in evidence only through competent witnesses who have direct knowledge of the contents and also subject to its admissibility under law, is the submission of the learned senior counsel contending that no interference with P5 order of the learned Sub Judge is warranted in exercise of the extraordinary jurisdiction vested with this court under the Constitution of India. Counsel appearing for the other respondents also supported the submissions made as above canvassing that the challenge against P5 order has to be turned down. 5. Counsel appearing for the other respondents also supported the submissions made as above canvassing that the challenge against P5 order has to be turned down. 5. In appreciating the correctness of Ext.P5 order passed by the learned Sub Judge declining to receive some documents produced by the petitioner/plaintiff at the stage of his examination, but reserving his right to get those documents admitted in evidence subject to proving them by competent witnesses, it is profitable to look into the provisions covered by rule 3 and rule 4 of Order XIII of the Code of Civil Procedure. The above rules read thus: 3. Rejection of irrelevant or inadmissible documents:-The Court may at any stage of the suit reject any document which it considers irrelevant or otherwise inadmissible, recording the grounds of such rejection. 4. Endorsements on documents admitted in evidence:-(1) Subject to the provisions of the next following sub-rule, there shall be endorsed on every document which has been admitted in evidence in the suit the following particulars, namely:- (a) the number and title of the suit; (b) the name of the person producing the documents; (c) the date on which it was produced; and (d) a statement of its having been so admitted; and the endorsement shall be signed or initialled by the Judge. (Clause (2) not relevant, and hence omitted) So much so, the court is empowered to reject any document at any stage of the suit when it considers such document irrelevant or otherwise inadmissible subject to recording the reasons thereof. However, in the case of a party to a proceeding or suit, whatever be the objections to the document, it has to be raised when the document is sought to be admitted and exhibited in evidence. A document admitted in evidence without an objection being raised by the opposite party is insulated from any challenge from that party as to its relevancy or inadmissibility, but, its admissibility can be considered by the court at any stage, and if so found irrelevant or inadmissible, it can be rejected recording the grounds for such rejection. 6. Objection to any document as to the mode of proof, deficiency of stamp etc. must be taken when the document is tendered and before it is marked as an exhibit. 6. Objection to any document as to the mode of proof, deficiency of stamp etc. must be taken when the document is tendered and before it is marked as an exhibit. In the light of the decision rendered by the apex court in Bibin Shantilal Panchal v. State of Gujarat (AIR 2001 SC 1158), strict view previously followed that any objection to a document should be decided before it is permitted to be taken in evidence and the question of objection to the admissibility of such documents cannot be relegated to a later stage has lost its rigour, and marking of a document produced subject to the objection, if any raised, for relegating its consideration in the final hearing except in cases relating to deficiency of stamp duty, registration etc. is the order of the day. The apex court in the above decision has held thus: "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. 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. When so recast, the practice which can be a better substitute is thus : 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." 7. The learned counsel for the 6th respondent has tried to distinguish the above decision rendered by the apex court as inapplicable to civil cases contending that the view so formulated was rendered in a criminal case. I do not find any merit in the distinction to be drawn with reference to the applicability and a binding force of the decision in civil as well as criminal cases. In a criminal case, needless to point out, there can be no objection in admitting of a document for the reason of deficiency of stamp duty payable on a document which, however, could be raised in a civil case. General principles as to the marking of documents, whether it be in civil or criminal case, have been pointed out by the apex court taking note of the impracticability in rendering decision on the objections raised to the documents as and when the document is tendered in evidence and the consequences that may follow in case a document which ought to have been admitted in evidence is excluded erroneously sustaining the objections raised. It is also pointed out that the practice of insistence of decision on objection at the stage of marking and receiving the document would hamper and impeach steady and swift progress of the trial proceedings. The course to be followed when objections were raised except in cases relating to deficiency of stamp duty, it has been held, is to mark the documents tentatively as an exhibit in the case subject to the objection making a note of it to be decided at the last stage in the final judgment. In case, the court finds at the final stage that the objection raised is sustainable, the objected documents marked in evidence can be excluded from consideration. Such being the procedure to be followed in admitting of documents objected, except in the case of deficiency of stamp duty, the learned Sub Judge was not justified in declining to mark the documents referred to in Ext.P5 order on the objections raised by the respondents/defendants in the suit. I do not find any merit in the submissions made by the counsel for the 6th respondent that no prejudice is caused to the plaintiff as he has been permitted to get those documents admitted by examining the persons competent to prove the documents. Relegating the marking of the documents at a later stage insisting upon proof by competent witnesses for admitting them, no doubt, would deprive an opportunity to the petitioner/plaintiff to lead evidence as to the relevancy of those documents which have been produced by him. Marking of the documents referred to in Ext.P5 order through the plaintiff subject to the objections raised would also give an opportunity to the defendants to cross examine the plaintiff on material aspects connected with such documents, its relevancy etc., which opportunity they will lose in case such documents are admitted at a later stage by examination of the witnesses competent to prove such documents unless the plaintiff is permitted to be recalled for further examination. The defendants are free to raise whatever objections they have over the documents produced by the plaintiff. Marking of the documents subject to such objections for consideration at a later stage would not cause them any prejudice or injury, but, on the other hand, would enable them with an opportunity to cross examine the plaintiff as to the relevancy to such materials. Marking of the documents subject to such objections for consideration at a later stage would not cause them any prejudice or injury, but, on the other hand, would enable them with an opportunity to cross examine the plaintiff as to the relevancy to such materials. No harm or prejudice would be caused to the defendants if the documents are marked in evidence subject to their objections as mere marking of a document does not dispense with its proof. It is also open to the defendants to point out even when the documents are admitted subject to their objections that the petitioner/plaintiff is incompetent to speak on the contents of the documents in case proof of the documents is required by examining competent witnesses. 8. Ext.P5 order passed by the learned Sub Judge is set aside directing him to consider the reception of the documents referred to in that order for being admitted in evidence taking note of the observations made above and in accordance with law. Parties are directed to appear before the court below on 11th January, 2010. Writ petition is accordingly disposed.