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Gujarat High Court
Judgename :H.R.Shelat
STATE OF GUJARAT - Appellant
Versus
GAURANG MATHURBHAI LEUVA - Respondent
CRIMINAL REVISION APPLICATION 164 of 1999
Decided On : 05/04/1999
In short, no legal complexion is given to the issues that arise for consideration. After the hearing is over, while finally adjudicating, the Court is free to discard a particular document holding that it was not duly proved or holding that the document was partly proved namely, execution alone thereof was proved, but as the contents thereof were not proved, the same cannot be taken into account, if either of the parties later on files during the course of the hearing an application to expunge the document admitted in record, the Court may hearing the parties expunge the same if it finds that the document is not legally and correctly proved & exhibited. In short, by exhibiting the document merits or demerits thereof are not dissected, and the rights and obligations of the parties are not finally decided, or legal complexion is not given to the issue that arises for consideration as giving exhibit to the document is the procedural aspect of the matter and it merely shows that document is formally proved. The rights & obligations of the parties are to be decided while finally appreciating the evidence for the purpose of the pronouncing final verdict. In view of the matter, the order passed, admitting the letters and greeting cards, in evidence can be said to be the interlocutory order.
[Para 5]
Admissibility of a particular evidence is the interlocutory order which can subsequently be held to be inadmissible though ofcourse it is not so done often. All these decisions abundantly make it clear that the document if exhibited by the Court passing the order, the order which is passed would be the interlocutory order and not the final order determining the rights and liabilities of the parties finally because subsequently either of the parties can question the genuineness of the document and in that case it is open to the Court to accept or discard the document having due regards to the facts and circumstances on record. This revision application against the order in question is, therefore, in view of Sec. 397(2) of the Criminal Procedure Code is not maintainable, as the order in question is the interlocutory order.
[Para 6]
(b) Criminal Procedure Code, 1973 - Sec. 397(1) - Criminal revision - Admitting a document during trial during examination of a witness - Contention that such document can be exhibited only after the other side cross-examines the witness or re-examines the witness not sustainable - No provision of law to support the contention - Held, whatever may be the stage of examination, if the document is found to have been duly proved because of necessary proof, Court can exhibit & admit the same in evidence.
It is contended by the learned APP, that the document can be exhibited only after the other side cross-examines the witness, or re-examines the witness as the case may be. The document ought not to have been exhibited as prosecution was not given the chance to re-examine putting the question which can be put in cross-examination. The contention does not gain a ground to stand upon. Neither any procedural law nor any provision of the Evidence Act mandates to exhibit the document only after the other side assails, either in the cross-examination or in the re-examination, the statements made by the witness qua the proof of the document and the Court is satisfied about the reliability of the evidence in that regard. Whatever may be the stage of the examination, if the document is found to have been duly proved because of necessary statements regarding proof thereof having been made by the witness, the Court may exhibit and admit the same in evidence apart from the question of its appreciation later on, or challenge to be made by the other side which has been sought to be done in the present case. The contention therefore must fail. It may be mentioned that the right of the prosecution to assail the exhibition of the document is not curtailed or taken away by such observation.
[Para 7]
(c) Criminal Procedure Code, 1973 - Sec. 482 - Inherent powers of High Court - Exercise of - Scope is limited to secure ends of justice or to prevent the abuse of the process of the Court - When documents are exhibited over ruling the objections raised order can not be said to be perverse or arbitrary - No prejudice is likely to be caused to the other side because other party has right under Secs. 154 & 155 - Evidence Act to put necessary question with regard these documents to impect the credit of witnesses - Court held, that in the fact & circumstances there was no scope for the Court to exercise inherent power.
The next question that arises for examination is whether to secure the ends of justice or to prevent the abuse of the process of the Court, this Court should exercise its inherent powers. The learned advocate representing the respondent in the lower Court asked necessary question qua the document namely the letters and greeting cards while cross-examining the witness. The learned Judge found that the documents were duly proved and were required to be exhibited. When accordingly the documents are exhibited over-ruling the objections raised, the order cannot be said to be perverse or arbitrary or manifestly infirm and thereby it cannot be said that one or the another party has abused the process, or that Lower Court arbitrarily exercised the powers vested. Further by such order, no prejudice is going to be caused to the prosecution because it is open to the Court to discard the evidence later on having regard to the other evidence, facts and circumstances on record or it is open to the prosecution to pray for expunction of the documents, namely the letters & cards exhibited and challenge genuineness or reliability thereof. It may be stated that in re-examination, with the permission of the Court, the prosecution, keeping Secs. 154 & 155 of the Evidence Act in mind, may ask necessary questions on matters which have arisen in the cross-examination, and impeach the credit of the witness. It is therefore open to the petitioner to ask in re-examination necessary questions which can be asked in cross-examination by the adverse party with a view to explore as to how he was acquainted with the signature and handwriting and assail the veracity of the witness and show to the Court that the witness stating on the proof of the document is not reliable and has not deposed to the truthfulness of the execution & contents of the document; consequently the document already exhibited is required to be expunged. When that efficacious remedy is available, this Court will be loath in exercising the inherent powers.
[Para 11]
( 1 ) BEING aggrieved by the order dated 1/03/1999, passed by the learned Additional Sessions Judge at Gandhinagar, exhibiting the document overruling the objection raised by the prosecution, while recording the evidence of Manojkumar Chhanabhai Kapadia (Ex. 28) in Sessions Case No. 27 of 1998 on his file, the present revision application is filed. Necessary facts, in order to appreciate the rival contentions, may in brief be stated.
( 2 ) PERTAINING to the charge of the offences under Secs. 498a and 306, Indian penal Code framed, when evidence in Sessions Case No. 27 of 1998 was being recorded by the Additional Sessions Judge at Gandhinagar, the learned Advocate for the respondents who are the accused in that Sessions Case, asked certain questions in the cross-examination of the aforesaid witness and got the letters written by the victim Anjuben admitted and exhibited. At that time, the learned special Public Prosecutor, Shri Patel objected against admission of the documents giving exhibit submitting that he wanted to re-examine the witness putting the questions which could be asked in the cross-examination getting him declared hostile, and so long as his such re-examination was not over, and the Court was not satisfied about the reliability of the evidence on the point, the letters and cards in question could never be exhibited. Disagreeing with the objection raised, the learned Judge exhibited the letters and greetings cards as Exhibits 30 to 38. The cross-examination was then over. Immediately thereafter the learned Public prosecutor sought time making it clear to the Court that he wanted to prefer the revision before the High Court. His request for time was then accepted. The evidence recorded till that stage was read over and explained to the witness, and the learned Judge then signed the deposition. This Revision application is, therefore, filed calling in question the legality and validity of the order overruling the objection raised. The crucial point raised for consideration is whether Revision application can lie if the lower Court exhibits and admits a document in evidence or refuses to admit and exhibit.
( 3 ) ASSAILING the order of the learned Judge, Ms. Katha (Binoda) Gajjar, the learned A. P. P. , contends that the letters and greeting cards were not proved in accordance with the provisions of Secs. 47 and 67 of the Evidence Act. Further, without affording the opportunity to the prosecution to cross-examine the witness, the documents when exhibited cannot in law be said to have been exhibited legally. In reply, the learned Advocate, Mr. J. B. Pardiwala submits that this revision application is not maintainable at all because the order in question is the interlocutory order and so in view to Sec. 397 (2) of the Criminal Procedure Code the powers conferred cannot be exercised. He also supported the impugned order.
( 4 ) WHETHER the order in question can be said to be the interlocutory is the question passed before me for consideration. The expression "interlocutory order" is not defined in Criminal Procedure Code. In order to judge whether the particular order is interlocutory or otherwise, the Court has to, making every endeavour, find out whether the order in question is interlocutory order. If it is found that the order passed is purely interim or temporary in nature which does not decide or touch the important rights and liabilities of the parties and give a final shape to a particular point at a particular stage during the course of the hearing the same can be termed interlocutory order. If the order substantially affects the rights and liabilities of the parties it would not be the interlocutory order. It may also be stated that intermediate or quasi-final order which determines a particular issue finally at any stage of the hearing will not fall within the ambits of interlocutory order.
( 5 ) WHEN the Court finds that a particular document tendered in evidence by the witness is duly proved
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