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Madhya Pradesh High Court · body

2021 DIGILAW 38 (MP)

Ishwarlal v. State of M. P.

2021-01-15

VIVEK RUSIA

body2021
ORDER : Vivek Rusia, J. Heard the learned counsel for the parties through video conferencing. 1. The applicant/accused has filed the present revision u/s. 397, 401 of the Cr.P.C. against the order dated 9.9.2020 whereby the applications filed u/s. 293 of the Cr.P.C. and u/s. 65 of the Evidence Act filed by the prosecution have been allowed by the learned Special Judge, Narcotic Drug Psychotropic Substances Act (NDPS Act), Mandsaur. 2. The applicant is facing trial u/s. 8/21, 29 and 31 of the NDPS Act registered at Crime No. 353/2016, by the Police Station Sitamau, District Mandsaur. The prosecution has examined all the witnesses and the statement of the accused has also been recorded on 21.7.2020. Thereafter, the trial was fixed for final hearing on 27.7.2020. 3. According to the applicant, the arguments have already been advanced on 27.7.2020 and on the said date, the prosecution has filed an application u/s. 293 of Cr.P.C. seeking permission to exhibit the certified copy of the FSL report as secondary evidence without calling the witness. The application was opposed by the applicant on the ground that the original FSL report is not available on the record, therefore, Certified Copy the same is inadmissible in evidence. Upon raising such an objection, the prosecution has filed another application u/s. 65 of the Evidence Act on the ground that the certified copy of the FSL report is a public document and the same is liable to be admitted as a secondary evidence. The applicant opposed the application by filing the reply on 14.8.2020. Vide impugned order dated 9.9.2020 learned Special Judge has allowed both the applications by directing the prosecution to call Ajay Kumar Sharma to prove the contents of the FSL report. Hence the present revision before this Court. Vide order dated 19.10.2020, this Court has stayed the delivery of judgment and fixed the case for final arguments. With the consent of parties, this revision is heard finally. 4. Hence the present revision before this Court. Vide order dated 19.10.2020, this Court has stayed the delivery of judgment and fixed the case for final arguments. With the consent of parties, this revision is heard finally. 4. Shri Yashpal Rathore, learned counsel appearing for the applicant argued that after the conclusion of the evidence and final arguments in the trial, the prosecution has filed the application u/s. 293 of the Cr.P.C. that the Certified Copy of photocopy of the FSL report be permitted to be exhibited in the trial but the original FSL report is not available on record and along with the challan, even otherwise FSL report is not a public document, hence the same is not admissible under the Evidence Act as secondary evidence. As per provisions of Section 293 of the Cr.P.C. the original report is liable to be produced in the trial. In support of his contention, he has placed reliance over the judgment of coordinate Bench of this Court in the case of Govind Nandilal Lodhi V/s. State of M.P. 2002 (1) MPLJ 569 . Upon raising such an objection, the prosecution has filed an application u/s. 65 of the Evidence Act that the FSL report has been certified by a person who has prepared the original copy and being a public document the certified copy same is liable to be taken into evidence. Even the said application was opposed by the applicant, but the learned Special Judge has wrongly allowed both the applications. Learned counsel further submitted that the ingredients of Section 65 are missing as there is no pleading that the original report has been misplaced or lost or destroyed. The issue is no res integra as in the case of Govind Nandilal Joshi (supra) it has been held that the report of a scientific expert is not a public document and such report cannot be proved u/s. 77 of the Evidence Act. Section 293 is confined to primary evidence. He further submitted that if the photocopy or certified copy is permitted to be produced u/s. 293 of the Cr.P.C., then there would be a chance of conviction of the applicant otherwise the applicant is going to be acquitted for want of proving the FSL report. 5. Section 293 is confined to primary evidence. He further submitted that if the photocopy or certified copy is permitted to be produced u/s. 293 of the Cr.P.C., then there would be a chance of conviction of the applicant otherwise the applicant is going to be acquitted for want of proving the FSL report. 5. On the other hand, Shri Ayushman Choudhary, learned Panel Advocate appearing for the respondent/State opposed the prayer by submitting that Section 293 of Cr.P.C. speaks about the documents in which there is no requirement of producing the original document. Under section 294 all the documents which are filed along with the charge-sheet before the Court and delivered to the accused and, where the genuineness of any document is not disputed, such document may be read in the inquiry, trial or other proceedings 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. Hence, the trial Court has not committed any error of law while allowing the applications hence no interference is called for with the impugned order. 6. In the present case, the prosecution has filed a certified copy of the original FSL report along with the challan. The officer who has prepared the FSL report has signed the photocopy of the said report as a certified copy and sent to the prosecution for filing in the Court along with the challan. After closing of the evidence, the prosecution has filed an application that the said certified copy of the FSL report be permitted to be marked as an Exhibit. The said application was opposed by the applicant on the ground that the FSL report is not a public document, therefore, u/s. 77 of the Evidence Act, the certified copy cannot be produced as an FSL report. Upon raising such an objection, the prosecution has filed an application u/s. 65 of the Evidence Act seeking permission to exhibit the certified copy as secondary evidence. Only in certain cases, as mentioned in sub-clause (a) to (g) in Section 65 of the Evidence Act., the secondary evidence may be given. Upon raising such an objection, the prosecution has filed an application u/s. 65 of the Evidence Act seeking permission to exhibit the certified copy as secondary evidence. Only in certain cases, as mentioned in sub-clause (a) to (g) in Section 65 of the Evidence Act., the secondary evidence may be given. The secondary evidence can be given when the original is shown or appeared to be in possession of the person against whom the document is sought to be proved when the original has been destroyed or lost, when the original is not easily movable, when the original is a public document within the meaning of Section 74, and when the original is a document of which certified a certified copy is permitted by this Act. The application filed by the prosecution u/s. 65 of the Evidence Act is plain and simple in which none of the reasons has been assigned. 7. Section 294 of the Cr.P.C. says that where any document is filed before any Court by the prosecution or by the accused, as the case may be, shall be called upon to admit or deny the genuineness of each such document. Where the genuineness of the document is not disputed, such document may be read in evidence in any inquiry, trial or other proceedings under this Code without proof of the signature of the person to whom it purports to be signed. However, in exception to the above, the Court may in its discretion may direct such signature to be proved. Therefore, it is not on record as to whether after filing the FSL report along with the list of documents or challan the applicant/accused has admitted or disputed the genuineness of the FSL report. 8. Section 293 of the Cr.P.C. speaks about any document purporting to be a report under the hand of a Government scientific expert to whom this section applies, may be used as evidence in any inquiry, trial or other proceedings under this Code. The Court may, if it thinks fit, summon and examine any such expert as to the subject matter of his report. U/s. 293 and 294 of the Cr.P.C. the prosecution itself suo motu have filed an application because the certified copy of the FSL report is in the record. The Court may, if it thinks fit, summon and examine any such expert as to the subject matter of his report. U/s. 293 and 294 of the Cr.P.C. the prosecution itself suo motu have filed an application because the certified copy of the FSL report is in the record. Since the applicant has raised an objection, therefore, learned trial Court has called upon the prosecution to prove the same by calling Mr. Ajay Kumar Sharma. Section 293 only talks about the documents, neither as original nor photocopy and if such document is filed either by the prosecution or by the accused along with the list of documents and the other party would be called upon to admit or deny the genuineness of the document. Since the certified copy of the FSL report has been filed and now the applicant is disputing the same, then under sub-section (3) of section 294 of Cr.P.C., the Court has a power to call the signatory of the report to prove the report. Section 293 deals with the report of certified Govt. scientific expert and any document purported to be report under the hand of Govt. scientific expert may be used as an evidence in the inquiry. Under sub-section (2) of Section 293, the Court may, if it thinks fit, summon and examine any such expert as to the subject matter of his report. The discretion has been given to the Court u/s. 293 also to summon, examine the report given by Govt. scientific expert. 9. In the case of Sonu Alias Amar V/s. State of Haryana: (2017) 8 SCC 570 , the apex Court has held that Section 294 of Cr.P.C. provides a procedure for filing documents in a court by the prosecution or the accused. The documents have to be included in a list and the other side shall be given an opportunity to admit or deny the genuineness of each document. In case the genuineness is not disputed, such document shall be read in evidence without formal proof in accordance with the Evidence Act. In this case, there is a reference of the judgment passed by the Bombay High Court in the case of Sk. Farid Hussinsab V/s. State of Maharashtra: 1983 Cr. L.J. 487 in which it has been held that the documents being primary or secondary or substantive or corroborative, is not relevant for attracting Section 294 of the Code. In this case, there is a reference of the judgment passed by the Bombay High Court in the case of Sk. Farid Hussinsab V/s. State of Maharashtra: 1983 Cr. L.J. 487 in which it has been held that the documents being primary or secondary or substantive or corroborative, is not relevant for attracting Section 294 of the Code. Not disputing its genuineness is the only solitary test therefor. Para 34 and 35 of the aforesaid judgment is reproduced below: 34. We proceed to deal with the submission of Mr. Luthra that the ratio of the judgment of the Bombay High Court in Shaikh Farid's case is not applicable to the facts of this case. It was held in Shaikh Farid's case as under: "5. In civil cases mode of proof can be waived by the person against whom it is sought to be used. Admission thereof or failure to raise objection to their tendering in evidence amount to such waiver. No such waiver from the accused was permissible in criminal cases till the enactment of the present Code of Criminal Procedure in 1973. The accused was supposed to be a silent spectator at the trial, being under no obligation to open his mouth till the occasion to record his statement under section 342 (present S. 313) of the Code arose. Even then he was not bound to answer and explain the circumstances put to him as being appearing against him. In the case of Chainchal Singh v. Emperor AIR 1946 PC 1 it was held by the Privy Council that the accused was not competent to waive his right and the obligation of the prosecution to prove the documents on which the prosecution relied. Resultantly, the prosecution was driven to examine witnesses even when the accused was not interested in challenging the facts sought to be proved though them. The inconvenience and the delay was avoidable. 6. Section 294 of the Code is introduced to dispense with this avoidable waste of time and facilitate removal of such obstruction in the speedy trial. The accused is now enabled to waive the said right and save the time. This is a new provision having no corresponding provision in the repealed Code of Criminal Procedure. 6. Section 294 of the Code is introduced to dispense with this avoidable waste of time and facilitate removal of such obstruction in the speedy trial. The accused is now enabled to waive the said right and save the time. This is a new provision having no corresponding provision in the repealed Code of Criminal Procedure. It requires the prosecutor or the accused, as the case may be, to admit or deny the genuineness of the document sought to be relied against him at the outset in writing. On his admitting or indicating no dispute as to the genuineness, the Court is authorised to dispense with its formal proof thereof. In fact after indication of no dispute as to the genuineness, proof of documents is reduced to a sheer empty formality. The section is obviously aimed at undoing the judicial view by legislative process. 7. The preceding Section 293 of the Code also dispenses with the proof of certain documents. It corresponds with Section 510 of the repealed Code of Criminal Procedure. It enumerates the category of documents, proof of which is not necessary unless the Court itself thinks it necessary. Section 294 makes dispensation of formal proof dependent on the accused or the prosecutor, not disputing the genuineness of the documents sought to be used against them. Such contemplated dispensation is not restricted to any class or category of documents as under section 293, in which ordinarily authenticity is dependent more on the mechanical process involved than on the knowledge, observation or the skill of the author rendering oral evidence just formal. Nor it is made dependent on the relative importance of the document or probative value thereof. The documents being primary or secondary or substantive or corroborative, is not relevant for attracting Sec. 294 of the Code. Not disputing its genuineness is the only solitary test therefor. 8. Now the post-mortem report is also a document as any other document. Primary evidence of such a document is the report itself. It is a contemporaneous record, prepared in the prescribed form, of what the doctor has noticed in the course of post-mortem of the dead body, while investigation the cause of the death. It being relevant, it can be proved by producing the same. But production is only a step towards proof of it. It is a contemporaneous record, prepared in the prescribed form, of what the doctor has noticed in the course of post-mortem of the dead body, while investigation the cause of the death. It being relevant, it can be proved by producing the same. But production is only a step towards proof of it. It can be received in evidence only on the establishment of its authenticity by the mode of its proof as provided under sections 67 to 71 of the Evidence Act. Section 294(1) of the Code enables the accused also, to waive this mode of proof, by admitting it or raising no dispute as to its genuineness when called upon to do so under sub-section (1). Sub-section (3) enables the Court to read it in evidence without requiring the same to be proved in accordance with the Evidence Act. There is nothing in Section 294 to justify exclusion of it, from the purview of "documents" covered thereby. The mode of proof of it also is liable to be waived as of any other document." 35. Section 294 of the Cr. P.C. 1973 provides a procedure for filing documents in a Court by the prosecution or the accused. The documents have to be included in a list and the other side shall be given an opportunity to admit or deny the genuineness of each document. In case the genuineness is not disputed, such document shall be read in evidence without formal proof in accordance with the Evidence Act. The judgment in Shaikh Farid's case is not applicable to the facts of this case and so, is not relevant." In the case of Govind Nandilal Lodhi (supra) also, this Court has held that formal proof is required in the manner secondary evidence is proved if the original is not produced and directed the prosecution to summon the person who has certified the document and their creation or produce the original for proving the documents. Therefore, in the present case also, learned trial Court has followed the correct procedure by directing the prosecution to produce Mr. Ajay Kumar Sharma to prove the FSL report. The question of primary or secondary evidence does not arise in case of proving the report u/s. 293 and 294of the Cr.P.C. The State is not aggrieved by the order and ready to prove the report by calling the expert. Ajay Kumar Sharma to prove the FSL report. The question of primary or secondary evidence does not arise in case of proving the report u/s. 293 and 294of the Cr.P.C. The State is not aggrieved by the order and ready to prove the report by calling the expert. Hence, I do not find any illegality in the impugned order. Accordingly, this revision is dismissed.