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2024 DIGILAW 1095 (KER)

SHARAFUDHEEN S/O ALAVIKUTTY v. STATE OF KERALA

2024-09-03

A.BADHARUDEEN

body2024
ORDER : 1. This Criminal Miscellaneous Case has been filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (‘BNSS’ for short hereafter) and the petitioner is the sole accused in S.C.No. 450/2022 on the files of Special Court for the trial of offences under the Protection of Children from Sexual Offences Act (‘POCSO Act' for short), Perumbavoor. The petitioner assails the order in Crl. M.P. No. 274/2024 dated 13.08.2024 in the above case. 2. Heard the learned counsel for the petitioner and the learned Public Prosecutor in detail. Perused the order impugned and relevant materials available. 3. Crl. M.P. No. 274/2024 is a petition filed under Section 311 of the Code of Criminal Procedure (‘Cr.P.C’ for short) by the prosecution to recall PW18, the Investigating Officer, to clarify and explain the documents marked on the side of the accused as Exts. X1 to X6, viz., general diary and weekly reports. Prosecution sought examination of PW18, after recalling him on the ground that such an exercise is necessary to clarify and explain Exts. X1 to X6 and to protect the interest of the prosecution. 4. The petitioner herein/accused strongly opposed the prayer and it was contended that as per Section 294 of Cr.P.C, Exts. X1 to X6 were tendered in evidence, as admitted by the prosecution and, therefore, the attempt of the prosecution to clarify/explain the said documents by recalling PW18, could not be allowed as the same would amount to filling up the lacuna in prosecution evidence. 5. The trial court addressed the combating contentions in tune with decision in Mishrilal and others v. State of Madhya Pradesh and Others, 2005 KHC 1776 and Vijayadas K.V. v. State of Kerala, 2017 (4) KHC 9 : 2017 (3) KLT SN 74 and finally allowed the petition as observed in paragraph 21 of the order, as extracted hereunder: “21. As it is held in 2017 (4) KHC 91 (supra), trial of a case should be a search for the truth and this Court finds that the clarification of PW18 on the relevant aspects is absolutely necessary for finding out the truth involved and thereby to arrive at the just decision in the case. Consequently, it is found that the recalling of PW18 after re-opening the evidence for his further examination in the case is absolutely necessary and hence the present petition for the same shall be allowed. Consequently, it is found that the recalling of PW18 after re-opening the evidence for his further examination in the case is absolutely necessary and hence the present petition for the same shall be allowed. Resultantly, the petition is allowed and PW18 is allowed to be examined further and for that the evidence in the case is reopened.” 6. The learned counsel for the petitioner while attempting to upset the order impugned, fervently argued that recalling of PW18, in order to clarify and explain Exts.X1 to X6, should not have been allowed by the Special Court since those documents summoned by the accused were admitted by the prosecution and, therefore, no formal proof of the said documents is necessary. It is also submitted that recalling of PW18 would prejudice the right of the accused and the same is resemblance to allow the prosecution to fill up the lacuna in evidence. 7. The learned Public Prosecutor would submit that Exts.X1 to X6 documents should have been tendered in evidence by examining the author thereof and mistakenly the prosecutor admitted the same and the same got marked in evidence. Since clarification and explanation regarding the general diary and weekly reports produced from the custody of the SHO are necessary through the mouth of PW18, so as to ascertain the truth of the matter, taking note of the interest of the prosecution as well as the accused, the Special Court rightly allowed the petition and hence the impugned order is not liable to be interfered. 8. Having addressed the rival contentions, I have gone through the order, Section 294 of Cr.P.C and Section 330 of BNSS. 9. The questions to be considered are: (1) What is the procedure to be followed when documents filed in Court either by the prosecution or by the accused under Section 294 of Cr.P.C or under Section 330 of BNSS? (2) Is it mandatory to prove the documents filed in Court under Section 294 of Cr.P.C or under Section 330 of BNSS by examining its authors? (3) Whether any discretion is left to the Court to prove the signature/signatures in the document/documents filed before the Court under Section 294 of Cr.P.C or under Section 330 of BNSS? 10. (2) Is it mandatory to prove the documents filed in Court under Section 294 of Cr.P.C or under Section 330 of BNSS by examining its authors? (3) Whether any discretion is left to the Court to prove the signature/signatures in the document/documents filed before the Court under Section 294 of Cr.P.C or under Section 330 of BNSS? 10. In this connection, it is apposite to refer Section 294 of Cr.P.C and Section 330 of BNSS as under: Section 294 of Cr.P.C Section 294: No formal proof of certain documents: (1) Where any document is filed before any Court by the prosecution or the accused, the particulars of every such document shall be included in a list and the prosecution or the accused, as the case may be, or the pleader for the prosecution or the accused, if any, shall be called upon to admit or deny the genuineness of each such document. (2) The list of documents shall be in such form as may be prescribed by the State Government. (3) Where the genuineness of any document is not disputed, such document may be read in evidence in any inquiry trial or other proceeding 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.” Section 330(1) of BNSS: 330. No formal proof of certain documents: (1) Where any document is filed before any Court by the prosecution or the accused, the particulars of every such document shall be included in a list and the prosecution or the accused or the advocate for the prosecution or the accused, if any, shall be called upon to admit or deny the genuineness of each such document soon after supply of such documents and in no case later than thirty days after such supply: Provided that the Court may, in its discretion, relax the time limit with reasons to be recorded in writing: Provided further that no expert shall be called to appear before the Court unless the report of such expert is disputed by any of the parties to the trial. 11. 11. Going by the statutory wordings, when documents were filed before the Court, either by prosecution or by the accused in the manner provided under Section 294(1) of Cr.P.C or under Section 330(1) of BNSS, the pleader for the prosecution or the accused shall be called upon to admit or deny the genuineness of each such documents. As per section 330(1) of BNSS, when any document is filed, its particulars shall be included in a list and the prosecution or accused or the advocates for the prosecution or accused shall be called upon to admit or deny the genuineness of each such document soon after supply of such documents and in no case later than thirty days after such supply. Thus, there is slight difference in the wordings in section 294(1) of Cr.P.C. and section 330(1) of BNSS. At the same time, as per Section 294(3) or under Section 330(3) of BNSS, where the genuineness of any documents is not disputed, such document may be read in evidence in inquiry, trial or other proceedings under the Code/Sanhita without proof of the signature of the person to whom it purports to be signed. However, as per Section 330(1) of BNSS, a period of thirty days after supply of documents also fixed by the legislature to accept or deny the documents, though in Section 294(1) of Cr.P.C, no such period is fixed. In view of fixation of period of thirty days, proviso to Section 330(4) of BNSS gives a discretion to the Court to relax the time limit with reasons to be recorded in writing. Proviso to Section 294(3) of Cr.P.C and Section 330(3) of BNSS leaves a discretion to the Court to insist proof of the signature of the document/documents and, in fact, proof of the documents itself. Thus the law emerges is that when documents were filed under Section 294(1) Cr.P.C or under Section 330(1) of BNSS, the pleader for the prosecution or advocate for accused when called upon to admit or deny the genuineness of such document and the genuineness of the document is admitted and not disputed, such document may be read in evidence without proof of the signature of the person, to whom it purports to be signed. The inevitable corollary is that when the genuineness of the document/documents is disputed, the said document/documents shall be proved by examining its authors with proof of their signatures. The inevitable corollary is that when the genuineness of the document/documents is disputed, the said document/documents shall be proved by examining its authors with proof of their signatures. In the absence of the authors of the documents, the alternate mode of proof also to be resorted to. At the same time, the court has the discretion to require such signature to be proved. The discretion of the Court, to require such signature is to be proved, is the proof of the document itself and the said discretion can be exercised either before admission of the documents by the adverse party and even after admission of the documents by the adverse party, if such a course of action is found necessary by the court to meet the ends of justice. 12. Reverting back, as rightly argued by the learned counsel for the petitioner, in the decision in Mishrilal and others v. State of Madhya Pradesh and others’s case (supra), the Apex Court held that once the witness was examined in chief and cross examined fully, such witness should not be recalled and re-examined to deny the evidence he had already given before court even though witness had given an inconsistent statements. Similarly in Vijayadas K.V’s case (supra), this Court also held that recalling and re-examination of witness could not be done to fill up lacuna or to cure the mistake crept in evidence. In the instant case, even though Exts. X1 to X6 i.e. general diary as well as weekly reports, were marked on admission by the prosecution, now prosecution wants to recall and re-examine of PW18 to get clarification and explanation in relation to Exts. X1 to X6. 13. Thus this is not a case where PW18 was omitted to be examined at the time of his earlier examination. But his recalling being pressed into in view of production of Exts. X1 to X6. It is true that when the learned Public Prosecutor admitted the documents produced from the Police Station, the same do not require any formal proof as provided u/s. 294(1) of the Cr.P.C. However, the present petition has been filed in order to get clarification and explanation regarding the documents and the same was allowed by the court holding that recalling of PW18 to clarify Exts. X1 to X6 is necessary to find out the truth involved and thereby to arrive at a just decision of the case. Thus the trial court exercised its discretion in the instant case in tune with proviso to section 294(3) of Cr.P.C. and such an order need not be interfered by this Court. Therefore, the order under challenge doesn’t require any interference. Accordingly, this petition is dismissed. 14. Interim order granted in this case shall stand vacated. 15. Registry shall forward a copy of this order to the jurisdictional court for information and further steps, forthwith.