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Gujarat High Court · body

2015 DIGILAW 198 (GUJ)

Nilesh Jayantibhai Patel v. State of Gujarat

2015-02-18

V.M.PANCHOLI

body2015
Judgment V.M. Pancholi, J. 1. This petition is filed under Arts. 226 and 227 of the Constitution of India wherein the petitioner has prayed that the order dated 5-2-2014 passed by learned Judicial Magistrate, First Class, Vadodara below application Exh. 49 in Misc. Criminal Application No. 9 of 2011 be quashed and set aside. Rule. Learned Additional Public Prosecutor Ms. Maithili Mehta waives service of notice of Rule for respondent No. 1-State of Gujarat and learned Advocate Shri Ramnandan Singh waives service of Rule for respondent No. 2. With the consent of the learned Advocates for the parties this petition is taken up for final hearing forthwith. 2. Learned Advocate Shri Nasir Saiyed submitted that in the year 2008 respondent No. 2 had filed a criminal complaint against the petitioner and his parents for the offences punishable under Sees. 498A, 323, 504, 506(1) and 114 of the Indian Penal Code read with Secs. 3 and 7 of the Dowry Prohibition Act, 1961. The Investigating Officer carried out the investigation in the said matter, and thereafter, filed the charge-sheet. Thereafter, the concerned Court by way of a judgment and order dated 8-11-2012 was pleased to acquit the petitioner and other accused. In the meantime, the respondent No. 2 filed an application under the provisions of the Protection of Women from Domestic Violence Act, 2005 against the petitioner and his parents on 14-3-2011. In the said proceedings examination-in-chief of respondent No. 2 came to be recorded by the learned Magistrate vide Exh. 32, and thereafter, she was cross-examined by the learned Advocate for the petitioner. Learned Advocate for the petitioner further submitted that during the course of cross-examination of respondent No. 2 she has stated that on 2-7-2008 the petitioner had given a fist blow upon her abdomen. However, she admits in her cross-examination that she came to know about the stone in her gallbladder in the year 2009. She has also admitted that she had not taken any treatment immediately in respect of the aforesaid alleged injury caused by the petitioner. In her cross-examination she has further admitted that in the proceedings initiated by her under Sees. However, she admits in her cross-examination that she came to know about the stone in her gallbladder in the year 2009. She has also admitted that she had not taken any treatment immediately in respect of the aforesaid alleged injury caused by the petitioner. In her cross-examination she has further admitted that in the proceedings initiated by her under Sees. 498A of the I.P.C. nor in the deposition given by her before the learned trial Court nor even in the proceedings initiated by her in the maintenance application she had at any point of time whatsoever stated nothing with regard to the aforesaid injury caused by the petitioner. Learned Advocate for the petitioner from the record pointed out that during the cross-examination, respondent No. 2 asked the learned Magistrate to permit her to produce a xerox copy of the discharge summary report with regard to treatment of stone in the gallbladder. Learned Advocate Shri Saiyed further submitted that when the aforesaid document was exhibited by the learned Magistrate, learned Advocate for the petitioner has taken objection for exhibiting the said xerox copy of discharge summary report by giving an application on 5-2-2014, and thereby requested the learned Magistrate to de-exhibit the said xerox copy of the document. However, learned Magistrate passed me impugned order by which the request of the petitioner has been rejected. The petitioner has therefore, preferred this petition under Arts. 227 of me Constitution of India before this Court. 3. Learned Advocate for the petitioner submitted that the impugned order passed by the learned Magistrate is illegal, erroneous and perverse, and merefore, the same may be quashed and set aside. Learned Advocate further submitted that the learned Magistrate has failed to consider me fact that on one hand respondent No. 2 has produced a xerox copy of the discharge summary report before the Court, and on the other hand, she has refused to examine the doctor who had given treatment to respondent No. 2, and therefore, in absence of production of the original documents, learned Magistrate ought not to have exhibited the said document. Learned Advocate alternatively submitted that the respondent No. 2 ought to have examined the doctor who had given the certificate, and by examining the said doctor/witness the contents of the said documents can be proved. Learned Advocate alternatively submitted that the respondent No. 2 ought to have examined the doctor who had given the certificate, and by examining the said doctor/witness the contents of the said documents can be proved. However, in the present case, the respondent No. 2 has specifically refused to examine the said doctor who had issued the certificate/report, and therefore the learned Magistrate has committed an error by rejecting the application given by the petitioner. Learned Advocate further submitted that no prejudice is going to be caused to respondent No. 2 if the said document is de-exhibited simply because the same has no relevance to the case. On the other hand, irreparable loss would be caused to the petitioner if the said document is not de-exhibited, and therefore, the impugned order be quashed and set aside. 4. Learned Advocate for the petitioner has relied upon the decision rendered by this Court in the case of John Mithalal Desai v. Dineshbhai K. Vora, reported in 1997 (3) GLR 2103 and submitted that documents are to be admitted in evidence and marked as exhibit when proved in accordance with law. In other words, learned Advocate submitted that document upon which reliance is placed by the party must be brought on record legally. Mere marking the document as exhibit is not enough. 5. On the other hand, learned Advocate Shri Ramnandan Singh for respondent No. 2 has submitted that no illegality is committed by the learned trial Court by rejecting the application Exh. 49 given by the petitioner. Learned Advocate further submitted that once the document is exhibited it is not proper for the Magistrate Court to de-exhibit the said document. Learned Advocate further submitted that the original document is not available. The xerox copy of the said document can be produced on record and the said document can be exhibited. He has submitted that secondary evidence can be taken into consideration by the trial Court. For the said submission learned Advocate has relied upon the decision rendered by this Court in the case of Bhagwanji and Kalyanji v. Punjabhai Hajabhai Rathod, reported in AIR 2007 Guj. 88 : [ 2007 (2) GLR 1122 ]. Learned Advocate has relied upon Paragraph No. 9 of the said decision, which is as under: "9. So far as question No. 2 is concerned, a perusal of Sees. 88 : [ 2007 (2) GLR 1122 ]. Learned Advocate has relied upon Paragraph No. 9 of the said decision, which is as under: "9. So far as question No. 2 is concerned, a perusal of Sees. 62 of the Evidence Act, 1872 would make it clear that primary evidence means the document itself produced for the inspection of the Court. Explanation 1 provides that where a document is executed in several parts, each part is the primary evidence of the document; where a document is executed in counterpart, each counterpart is being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it. In the present case, the submission of the plaintiff had been that the document was executed in two parts, he was left with the carbon copy which was executed in the very same process and was in fact a counterpart of the original. If that be so, the said carbon copy would be primary evidence for the purposes of its production. It would be altogether different thing that the parties against whose interest the document is sought to be produced may challenge its genuineness or may disprove the same." 6. Learned Advocate for the respondent No. 2 has further relied upon the decision rendered by the Hon'ble Supreme Court in the case of Kaliya v. State of Madhya Pradesh, reported in 2013 (10) SCC 758 . Learned Advocate more particularly relied upon Paragraph No. 13 of the said decision and submitted that Sec. 65(c) of the Evidence Act provides that secondary evidence can be adduced relating to a document when the original has been destroyed or lost, or when the party offering evidence of its contents cannot for any other reason not arising from his own default or neglect produced it in reasonable time. The Court is obliged to examine the probative value of the documents produced in the Court or their contents and decide the question of admissibility of a document in secondary evidence. Thus, learned Advocate submitted that me learned trial Court has not committed any error in rejecting the application Exh. 49 given by the petitioner, and therefore, this Court may not interfere with the said order while exercising the powers under Art. 227 of the Constitution of India because the scope of judicial review is very limited. 7. Learned A.P.P. Ms. Thus, learned Advocate submitted that me learned trial Court has not committed any error in rejecting the application Exh. 49 given by the petitioner, and therefore, this Court may not interfere with the said order while exercising the powers under Art. 227 of the Constitution of India because the scope of judicial review is very limited. 7. Learned A.P.P. Ms. Maithili Mehta has adapted the arguments canvassed on behalf of the learned Advocate for respondent No. 2 and submitted that in the facts and circumstances of the present case learned trial Court has not committed any error, and therefore, the petition be dismissed. 8. Having heard the arguments canvassed on behalf of learned Advocates for the parties and having gone through the documents produced on record, following facts would emerge for consideration of this Court: "(1) During the course of cross-examination of respondent No. 2 she has specifically admitted that during the proceedings initiated by her under Sec. 125 of the Criminal Procedure Code, 1973, she has not at all narrated about the incident of 2009 during her examination-in-chief. (2) When respondent No. 2 has filed the complaint against the petitioner and his parents for the offences punishable under Sees. 498A of the LP.C. she has not at all stated about the incident which has taken place in 2009 and about the treatment taken by her in 2009. (3) In the present proceedings for the first time respondent No. 2 has stated in her cross-examination that the petitioner has given fist-blow on the abdomen of respondent No. 2. It is further stated by her that she had taken treatment from Dr. Harsil A. Shah and the said doctor had given a certificate, i.e. discharge summary report with regard to the treatment of stone in the gallbladder of respondent No. 2. Thus, it is clear from the aforesaid facts and circumstances of the case that for the first time respondent No. 2 has stated about the treatment taken by her in the pending proceedings under the Protection of Women from Domestic Violence Act, 2005. (4) It is clear from the record that a xerox copy of the said certificate was produced by her and though the learned Advocate for the petitioner has taken the objection for exhibiting the said document, the learned Magistrate has exhibited the said document. (4) It is clear from the record that a xerox copy of the said certificate was produced by her and though the learned Advocate for the petitioner has taken the objection for exhibiting the said document, the learned Magistrate has exhibited the said document. (5) It is not the case of respondent No. 2 that original certificate/document is lost or misplaced though due care is taken by her. (6) It is further clear from the record that respondent No. 2 has specifically refused to examine the doctor who has given the aforesaid certificate." 9. In view of the aforesaid factual background of the case, I would like to refer to certain provisions of the Evidence Act, 1872. Chapter V of the Act provides for documentary evidence which can be taken into consideration during the course of trial. Sections 61 to 65 of the Act are relevant for deciding the dispute involved in this petition. They are as under: "61. Proof of contents of documents:-- The contents of documents may be proved either by primary or by secondary evidence. 62. Primary evidence: Primary evidence means the documents itself produced for the inspection of the Court. Explanation 1 - Where a document is executed in several parts, each part is primary evidence of the document: Where a document is executed in counterpart, each counterpart being executed by one or some of me parties only, each counterpart is primary evidence as against the parties executing it. Explanation 2 - Where a number of documents are all made by one uniform process, as in the case of printing, lithography, or photography, each is primary evidence of the contents of the rest; but, where they are all copies of a common original, they are not primary evidence of me contents of the original. Illustrations: A person is shown to have been in possession of a number of placards, all printed at one time from one original. Any one of the placards is primary evidence of the contents of any other, but no one of them is primary evidence of the contents of the original. 63. Secondary evidence: Secondary evidence means and includes: (1) certified copies given under the provisions hereinafter contained; (2) Copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies. 63. Secondary evidence: Secondary evidence means and includes: (1) certified copies given under the provisions hereinafter contained; (2) Copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies. (3) copies made from or compared with the original; (4) counterparts of documents as against the parties who did not execute them; (5) oral accounts of the contents of a documents given by some person who has himself seen it. Illustration: (a) A photograph of an original is secondary evidence of its contents, though the two have not been compared, if it is proved that the tiling photographed was the original. (b) A copy compared with a copy of a letter made by a copying machine is secondary evidence of the contents of the letter, if it is shown that the copy made by the copying machine was made from the original. (c) A copy transcribed from a copy, but afterwards compared with the original, is secondary evidence; but the copy not so compared is not secondary evidence of the original, although the copy from which it was transcribed was compared with the original. (d) Neither an oral account of a copy compared with the original, nor an oral account of a photograph or machine copy of the original, is secondary evidence of the original. 64. Proof of documents by primary evidence: Documents must be proved by primary evidence except in the cases hereinafter mentioned. 65. (d) Neither an oral account of a copy compared with the original, nor an oral account of a photograph or machine copy of the original, is secondary evidence of the original. 64. Proof of documents by primary evidence: Documents must be proved by primary evidence except in the cases hereinafter mentioned. 65. Cases in which secondary evidence relating to documents may be given: Secondary evidence may be given of the existence, condition, or contents of a documents in the following cases: (a) When the original is shown or appears to be in the possession or power:- of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court or of any person legally bound to produce it, and when, after the notice mentioned in Sec. 66, such person does not produce it; (b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest; (c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time; (d) when the original is of such a nature as not to be easily movable; (e) when the original is public document within the meaning of Sec. 74; (f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in India to be given in evidence; (g) when the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court and the fact to be proved it the general result of the whole collection. In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible. In case (b), the written admission is admissible. In cases (e) or (f), a certified copy of the document, but no other kind of secondary evidence, admissible. In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents." 10. In case (b), the written admission is admissible. In cases (e) or (f), a certified copy of the document, but no other kind of secondary evidence, admissible. In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents." 10. The Hon'ble Supreme Court in the case of Kaliya, [ 2013 (10) SCC 758 ] has held in Paragraph No. 13 as under: "Section 65(c) of the Evidence Act, 1872 provides that secondary evidence can be adduced relating to a document when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason, not arising from his own default, or neglect, produce it in reasonable time. The Court is obliged to examine the probative value of documents produced in Court or their contents and decide the question of admissibility of a document in secondary evidence. (Vide: H. Siddiqui (dead) by L.Rs. v. A. Ramalingam, AIR 2011 SC 1492 ; and Rasiklal Manikchand Dliariwal v. M.S.S. Food Products, 2012 (2) SCC 196 ). However, the secondary evidence of an ordinary document is admissible only and only when me party desirous of admitting it has proved before the Court that it was not in his possession or control of it, and further, that he has done what could be done to procure the production of it. Thus, the party has to account for the non-production in one of the ways indicated in the Section. The party further has to lay down the factual foundation to establish the right to give secondary evidence where the original document cannot be produced. When the party gives in evidence a certified copy/secondary evidence without proving the circumstances entitling him to give secondary evidence, the opposite party must raise an objection at me time of admission. In case, an objection is not raised at that point of time, it is precluded from being raised at a belated stage. Further, mere admission of a document in evidence does not amount to its proof. Nor, mere marking of exhibit on a document does not dispense with its proof, which is otherwise required to be done in accordance with law. Further, mere admission of a document in evidence does not amount to its proof. Nor, mere marking of exhibit on a document does not dispense with its proof, which is otherwise required to be done in accordance with law. (Vide: Roman Catholic Mission v. State of Madras, AIR 1966 SC 1457 ; Marwari Khumhar v. Bhagwanpuri Guru Ganeshpuri, AIR 2000 SC 2629 ; R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami and V.P. Temple, AIR 2003 SC 4548 ; Smt. Dayamathi Bai v. K.M. Shaffi, AIR 2004 SC 4082 ; and Life Insurance Corporation of India v. Rampal Singh Bisen, 2010 (4) SCC 491 )." 11. From the decision rendered by the Hon'ble Supreme Court in the case of Kaliya, [ 2013 (10) SCC 758 ], it is clear that Hon'ble Supreme Court has held that as per Sec. 65(c) of the Evidence Act, secondary evidence can be adduced relating to a document when the original has been destroyed or lost or when the party offering evidence of its contents cannot for any other reason not arising from his own default or neglect produced it within a reasonable time, in such circumstances the secondary evidence can be looked into. It is further clear that the Court is obliged to examine the probative value of the documents produced in the Court or their contents and decide the question of admissibility of a document in secondary evidence. It is further held by the Hon'ble Supreme Court in the said decision that the secondary evidence of an ordinary document is admissible only and only when the party desirous of admitting it has proved before the Court that it was not in its possession or control of it. Thus, the party has to account for the non-production in one of the ways indicated in the Section. 12. In my opinion, the party has to lay down the factual foundation to establish the right to give secondary evidence where the original document cannot be produced. As per me decision of the Hon'ble Supreme Court when the party has given an evidence of a certified copy/secondary evidence without proving the circumstances entitling him to give secondary evidence, the opposite party must raise an objection at the time of admission. In the present case, the learned Advocate for the petitioner at the said stage taken the objection before the learned trial Court. In the present case, the learned Advocate for the petitioner at the said stage taken the objection before the learned trial Court. In spite of that, the document in question was exhibited, and therefore, the learned Advocate for the petitioner immediately gave an application Exh. 49 before the learned trial Court for de-exhibiting the document. However, the said request was wrongly refused by the learned trial Court, and therefore, from the facts of the present case it is clear that the trial Court has committed a grave error while rejecting the application Exh. 49 given by the petitioner. 13. Even this Court in the judgment given in the case of John Mithalal Desai, [1997 (3) GLP 2013] has observed that it must be remembered that not only the execution of the document but also the contents thereof are required to be proved for execution, even if proved is not the proof of the contents of the document. When the truth of the facts or contents stated in the document is in issue, the same are required to be proved by admissible evidence, i.e. by the evidence of those persons who can vouchsafe for the truth of the facts in issue for mere proof of execution and hand-writing would show that particular contents there, but not the truth thereof. Thus, in the facts and circumstances of the present case as narrated hereinabove, the respondent No. 2 has during her cross-examination produced a xerox copy of the certificate/report given by the doctor. It is not stated by her that original document is not in her possession nor she has stated that the original document is lost though she has taken due care, and therefore the secondary evidence produced by the respondent No. 1 ought not to have been exhibited by the learned Magistrate. Further, in the present case, respondent No. 2 has specifically refused to examine the doctor who has given the certificate for the reasons best known to her, and therefore, when the doctor who has issued the certificate is not examined by respondent No. 2, the contents of the said documents are not at all proved, and therefore, the learned Magistrate has committed a grave error in accepting the said document and exhibiting me same. Hence, the impugned order passed by the learned Magistrate is quashed and set aside. The learned Magistrate is directed to accept the application Exh. Hence, the impugned order passed by the learned Magistrate is quashed and set aside. The learned Magistrate is directed to accept the application Exh. 49, and thereby, de-exhibit the document produced by the respondent No. 2 during the course of her cross-examination, namely, discharge summary report given by the concerned doctor. With these observations and directions, the petition is allowed. Rule is made absolute. Direct service is permitted. Petition Allowed.