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2024 DIGILAW 124 (UTT)

Pulkit Arya v. State of Uttarakhand

2024-02-26

RAVINDRA MAITHANI

body2024
JUDGMENT : (Ravindra Maithani, J.) The challenge in this revision is made to an order dated 07.10.2023, passed in Sessions Trial No. 01 of 2023, State of Uttarakhand Vs. Pulkit Arya and others by the court of Additional Sessions Judge, Kotdwar, District Pauri Garhwal. By it, an application under Section 39 of the Indian Evidence Act, 1872 (“the Act”), moved by the prosecution has been allowed. 2. Heard learned counsel for the parties and perused the record. 3. The revisionist is put to trial, in Sessions Trial No.1 of 2023, State of Uttarakhand Vs. Pulkit Arya and others, in the court of Additional Sessions Judge, Kotdwar Pauri Garhwal (“the Trial”). During investigation, the data from the mobile phone of PW 23 was retrieved and sent to Forensic Science Laboratory for examination. It appears that the entire chat was given to the revisionist. Before PW 23 could be examined, an application was moved on behalf of the Special Public Prosecution with the following request:- “It is therefore, more respectfully prayed that as the whatsapp chat has voluminous data and it is evident according to the INDIAN EVIDENCE ACT 1872 that evidence can only be given of the facts in issue and relevant facts hence in the light of this defence counsel must be barred to cross examine the PW 23 on those whatsapp chats which was prior to the joining date of the deceased in the alleged hotel because it hit by section 39 of the INDIAN EVIDENCE ACT 1872 and also infringes the article 21 The Constitution of India right to privacy of PW 23 and dignity of the deceased. Such other orders be also passed as deemed fit and proper in facts and circumstances of the case in the interest of justice.” 4. After hearing the parties, by the impugned order dated 07.10.2023, the Court observed that as per prosecution the WhatsApp chats from the date, the deceased joined the resort till her death, are relevant and any chat prior to the deceased joining the resort would be violative of the privacy of the deceased. The Court further observed that it would be justified and as per law, if the defence ask questions on the relevant and related chats of the deceased and the witnesses. The Court further observed that it would be justified and as per law, if the defence ask questions on the relevant and related chats of the deceased and the witnesses. The Court also observed that as and when the defence will cross-examine the witness, the relevancy of the question would be examined and the prosecution may then raise objection, which may be decided accordingly. 5. Learned counsel appearing for the revisionist would submit that evidence is recorded as per the provisions of the Act. There cannot be any general blanket order restricting defence from asking questions before the cross-examination begins. It is argued that at the most, in case, any objection is raised with regard to any question during cross-examination that could be decided by the court during the course of examination. But, it is argued that in the impugned order, the Court has pre-decided the issue and has already observed that it would be justified and as per law that question may be asked with regard to related and relevant facts. It is also argued that the observation of the Court is against the provisions of Section 146 of the Act. 6. On the other hand, learned counsel appearing for the State would submit that the impugned order is as per law. He would submit that the court has not pre-judged any issue. The Court has observed in the impugned order that as and when any objection is raised with regard to any question that may be asked in cross-examination, it shall be decided at that stage. 7. Essentially, the application was filed by the prosecution under the provisions of Section 39 of the Act, which is as follows:- “39. The Court has observed in the impugned order that as and when any objection is raised with regard to any question that may be asked in cross-examination, it shall be decided at that stage. 7. Essentially, the application was filed by the prosecution under the provisions of Section 39 of the Act, which is as follows:- “39. What evidence to be given when statement forms part of a conversation, document, electronic record, book or series of letters or papers.- When any statement of which evidence is given forms part of a longer statement, or of a conversation or part of an isolated document, or is contained in a document which forms part of a book, or is contained in part of electronic record or of a connected series of letters or papers, evidence shall be given of so much and no more of the statement, conversation, document, electronic record, book or series of letters or papers as the Court considers necessary in that particular case to the full understanding of the nature and effect of the statement, and of the circumstances under which it was made.” 8. Chapter II of the Act, which contains Section 5 to 55 relates to the relevancy of facts. Section 5 of the Act, in broad term specifies the scope of evidence that may be adduced at a trial in a case. It reads as follows:- “5. Evidence may be given of facts in issue and relevant facts.––Evidence may be given in any suit or proceeding of the existence of non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others.” 9. Section 39 of the Act finds its place under the caption of “relevancy of facts”. Broadly, if there is a very voluminous document, it specifies that evidence shall be given of so much and no more of the document as the Court considers necessary in that particular case to the full understanding of the nature and effect of the statement. 10. Relevancy of evidence and admissibility are two different things. Relevancy of fact has already been defined. What question should be admissible in evidence that is decided by the Court. What questions are lawful in cross-examination? Section 146 of the Act provides for it. 11. 10. Relevancy of evidence and admissibility are two different things. Relevancy of fact has already been defined. What question should be admissible in evidence that is decided by the Court. What questions are lawful in cross-examination? Section 146 of the Act provides for it. 11. It is true that before cross-examination begins, the court may not injunct a party with regard to question that may not be asked. The blanket order may not be passed. 12. In the impugned order dated 07.10.2023, in fact, the court has not passed any such restrictive order to the revisionist for not asking any question. The court has made certain observations to the effect as to asking of which question may be justified and as per law. The court observed that only such question would be justified and as per law, which relates to the chats between deceased and P.W.23, which are related and relevant to the case. 13. The court further observed that in cross-examination such question may not be asked, which are not permitted to be asked under the Act and thereafter, the court observed that as and when questions are asked, the prosecution may object to it and accordingly, they shall be decided then. A complete reading of the impugned order makes abundantly clear that the court had not passed any restrictive order barring the revisionist from asking any question. Of course, the court made an observation that only such question may be permitted to be asked as are permissible under the Act. If such observation is made, it does not make the impugned order bad in the eyes of law. The court has also made an observation that which question would be justified and as per law that may be asked during cross-examination, but that is an observation alone. The final order of the court in a nutshell is at page 3 (top paragraph), which says that relevancy of question may be determined when the question is asked. If any objection is raised by the prosecution, that may be decided then. 14. In view of the above discussions, this Court is of the view that there is no illegality in the impugned order, which may warrant any interference by this Court. Accordingly, the revision deserves to be dismissed. 15. The revision is dismissed.