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2023 DIGILAW 498 (HP)

Sanjeev Kumar v. State of H. P.

2023-12-07

RAKESH KAINTHLA

body2023
JUDGMENT : (Rakesh Kainthla, J.) The petitioner has filed the present petition for seeking the quashing of the order dated 14.09.2022, passed by learned Special Judge, Una, District Una, H.P. It has been asserted that FIR No. 289/2015, dated 18.9.2015 was registered for the commission of offences punishable under Sections 341, 354 and 506 of IPC and Section 3(I)(XI) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 on the complaint of the wife of the present petitioner. She died on 17.11.2021. The trial is pending before learned Special Judge, Una. The accused stated while recording his statement under Section 313 of Cr.P.C. on 14.9.2022 that he wanted to lead evidence in defence. He exhibited certain documents as Ex.R-1 to R-16. These documents were taken on record and the matter was listed for arguments. Learned Public Prosecutor had also not objected to the exhibition of the documents. The petitioner came to know of the exhibiting of the documents from the letter written by the District Attorney to the Director, Prosecution on 16.9.2022. The petitioner filed an application for adjournment of his case. The learned Trial Court had wrongly exhibited the documents. The documents are copies of the original documents and could not have been taken on record without prior permission of the Court. No opportunity was given to the other side to rebut the documents or cross-examine the witness. The documents were taken under the Right to Information Act and the original record was never produced. The document could have been exhibited after filing an application under Section 315 of Cr.P.C. and by stepping it into the witness box. Therefore, it was prayed that the present petition be allowed and the order permitting the exhibition of the documents be set aside. 2. The application is opposed by filing a reply making preliminary submissions that the present petition is not maintainable and the same is bad for non-joinder of necessary parties. It was asserted that respondent no. 2 was prosecuting the case on behalf of the State and he was wrongly arrayed as a party. Respondent No. 2 had objected to the exhibition of the documents but he was told by the Court that the exhibition of the documents would not mean that the same would be taken into consideration. Respondent No.2 informed the Director, Prosecution and the petitioner about the exhibition of documents by writing a letter. Respondent No. 2 had objected to the exhibition of the documents but he was told by the Court that the exhibition of the documents would not mean that the same would be taken into consideration. Respondent No.2 informed the Director, Prosecution and the petitioner about the exhibition of documents by writing a letter. The petition has been wrongly filed against respondent no. 2; therefore, it was prayed that the present petition be dismissed. 3. I have heard Mr Vikas Rajput, learned Counsel for the petitioner, Mr. Jitender Sharma, learned Additional Advocate General for respondents no.1 and 2/State and Mr. Lakshay Parihar, learned counsel for respondent no. 3. 4. Mr Vikas Rajput, learned counsel for the petitioner submitted that the documents were obtained under the Right to Information Act and they are not admissible in evidence. They could not have been exhibited without proper proof. Hence, he prayed that the present petition be allowed and the order passed by the learned Special Judge be set aside. 5. Mr. Jitender Sharma, learned Additional Advocate General for respondents no. 1 and 2 submitted that the mere production of the documents or even marking the exhibit on them does not amount to the proof of a document as is understood in law. It is for the learned Special Judge to see whether the documents were properly proved or not. The power under Section 482 of Cr.P.C. is to be exercised sparingly and should not be exercised for mere exhibition of a document. Therefore, he prayed that the present petition be dismissed. 6. I have given considerable thought to the submissions at the bar and have gone through the record carefully. 7. It was laid down by Hon’ble Supreme Court in Sait Tarajee Khim Chand v. Yelamarti Satyam, (1972) 4 SCC 562 that mere marking of an exhibit does not dispense with the proof of a document. It was observed:- “15. The plaintiffs wanted to rely on Exs. A-12 and A-13, the day book and the ledger respectively. The plaintiffs did not prove these books. There is no reference to these books in the judgments. The mere marking of an exhibit does not dispense with the proof of documents. It is commonplace to say that the negative cannot be proved. The plaintiffs wanted to rely on Exs. A-12 and A-13, the day book and the ledger respectively. The plaintiffs did not prove these books. There is no reference to these books in the judgments. The mere marking of an exhibit does not dispense with the proof of documents. It is commonplace to say that the negative cannot be proved. The proof of the plaintiff's books of account became important because the plaintiffs' accounts were impeached and falsified by the defendants' case of larger payments than those admitted by the plaintiffs. The irresistible inference arises that the plaintiffs' books would not have supported the plaintiffs.” 8. A similar view was taken by this court in UCo Bank vs. Durga Dass ILR 1995 HP 110 = 1995 (1) Sim. L.C. 497 wherein it was observed: “18. Thus, on the basis of the Law of Evidence Act and the guidelines, which can be taken note of from the cases decided by the apex Court and referred to above, it can safely be said that merely exhibiting a document will not absolve the party, relying on the document, from proving its execution and the contents thereof in accordance with law especially when the document is a private document, the scribe and the person who executed it, are the witnesses who alone could successfully and legally prove such a document.” 9. Therefore, there is some force in the submission of Mr. Jitender Sharma, learned Additional Advocate General for the State that the petition is premature as the learned Special Judge has to see the admissibility of the documents. The mere marking of the exhibit on the documents will not dispense with their proof and if the documents are legally inadmissible, the same will not be read by the learned Special Judge. Since the question of legal admissibility is yet to be decided by the learned Special Judge, it is not necessary to decide whether the documents obtained under the Right to Information Act can be tendered in evidence or not because any finding recorded by this Court will prejudice the trial pending before the learned Trial Court. 10. It was submitted that the accused was required to get permission from the Court under Section 315 of Cr.P.C. before leading the evidence. This submission is not acceptable. 10. It was submitted that the accused was required to get permission from the Court under Section 315 of Cr.P.C. before leading the evidence. This submission is not acceptable. The necessity to take permission under Section 315 of Cr.P.C. arises when the accused intends to appear as his witness. Otherwise, he is free to lead the evidence as he has the right to defend himself. Hence, the submission that learned Special Judge erred in permitting the accused to lead evidence without any application under Section 315 of Cr.P.C. is not acceptable. 11. The power under Section 482 of Cr.P.C. is extraordinary and is to be exercised sparingly for securing the ends of justice or preventing the abuse of the process of the Court. In the present case, no injustice has been done as only the document has been permitted to be exhibited. It is always open for the learned Trial Court to consider the admissibility of the document and since there is no decision, there is no justification for interfering with the mere exhibition of the documents. 12. The order sought to be challenged is merely a routine order which does not affect the rights of any person. Such, an order is not to be interfered with in the exercise of the extraordinary power of the Court under Section 482 of Cr.P.C. 13. Therefore, the present petition fails and the same is dismissed. 14. The parties through their respective counsel are directed to appear before the learned Trial Court on _______.