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Gujarat High Court
Judgename :J.R.Vora
State of Gujarat - Appellant
Versus
Ashulal Nanji Bisnol - Respondent
CRIMINAL REVISION APPLICATION 37 of 1992
Decided On : 11/03/2001
For the contention regarding the stage at which the Court is required to decide the objections, learned Advocate General relied on a decision of the Supreme Court in the matter of Bipin Shantilal Panchal vs. State of Gujarat, reported in 2000 (2) GLH, 545, wherein the Supreme Court deprecated archaic practice of trial Courts not to proceed further without passing order on an objection regarding admissibility of any material in evidence and, therefore, the Supreme Court directed that whenever an objection is raised during evidence regarding the admissibility of any material or item of oral evidence, the trial Court can make a note of such objection and mark the objected document tentatively as an exhibit in the case and subject to such objections to be decided at the last stage in the final judgment.
[Para 4]
Serious error has been committed by the learned Addl. Sessions Judge in firstly discarding the statements of the respondent, may it be, confessional from taking the same on the record and secondly the error learned Addl. Sessions Judge committed was regarding dropping down the shutters of recording of the evidence of PW. 16. It clearly appears that the facts of the case are clearly covered by the decision of the Apex Court in Bipin Shantilal Panchals case.
[Para 6]
(b) Constitution of India, 1950 — Art. 141 — Precedent — Ratio decidendi — Principles laid down by Supreme Court in Bipin Shantilal Panchals case — Held, having binding force under Art. 141.
This Court cannot accept the contention of the learned advocate for respondent No. 1 that what is decided regarding the stage of recording of the evidence in Bipin Shantilal Panchals case by the Apex Court is not ratio decidendi and binding precedent under Art. 141 of the Constitution of India. Even applying the principle as laid down by the Supreme Court in the matter of Union of India vs. Dhanwanti Devi, as referred by the learned Advocate for the respondent No. 1 what is decided by the Apex Court in Bipin Shantilal Panchals case is ratio decidendi and has binding effect under Sec. 141 of the Constitution of India.
[Para 6]
(c) Criminal Procedure Code, 1973 (Central Act 2 of 1974) — Sec. 293 — Relevancy and admissibility of evidence — PW. 16 being scientific expert and not being a police officer, her statement is relevant and admissible in evidence under Sec. 293 Criminal Procedure Code and also under Sec. 45, Evidence Act — Not hit by Secs. 25 & 26, Evidence Act — Held, trial erred in closing her evidence, declaring it to be irrelevant — Impugned order quashed and set aside.
The facts go to show that the witness is yet to be examined fully, the prosecution has not been given chance to lay down the foundation to declare that PW. 16 is an expert witness. What is stated by PW. 16 is her qualification and the fact that the accused were brought before her and one of the accused consented to go for the Lie Detection Test. Now at this juncture before the witness proceeds further the defence and the Court jumped to the conclusion that the statements recorded by PW. 16 were inadmissible and, therefore, her evidence was closed by the learned Addl. Sessions Judge. Even, the statements which were held irrelevant and inadmissible were not allowed to be brought on the record and, therefore, as has been apprehended by the Supreme Court in Bipin Shantilal Panchals case has taken place in this case that this Court is deprived of the material which is held inadmissible by the trial Court. The order, therefore, also, is required to be quashed and set aside.
[Para 8]
(d) Criminal Procedure Code, 1973 (Central Act 2 of 1974) — Sec. 397 — Revision — Interlocutory order — Impugned order ultimately effecting rights of parties — Held, such order comes within ambit of a final order — Hence, revision is maintainable.
The law is now well established that the orders which affects the rights of the parties ultimately are the final orders may have been passed at the interlocutory stage, Revision Application is maintainable against such orders. Order which is impugned certainly goes to the root of the matter and since the evidence of PW. 16 is closed by the learned Addl. Sessions Judge, the same affects the rights finally of the prosecution and, therefore, the order impugned cannot be said to be an interlocutory order.
[Para 9]
( 1 ) THIS Revision Application is filed by the State against the order passed by learned Addl. Sessions Judge, Mehsana, in session Case No. 58 of 1990 during deposition of witness PW 16 Exh. 126 Dr. Smt. S. L. Vaya, by which the learned addl. Sessions Judge observed that the statements recorded by this witness of the accused respondents are confession in nature and therefore, are not admissible and further that the witness had no authority under the provisions of the criminal Procedure Code to obtain statements of the accused and therefore the learned Addl. Sessions Judge held that the statements recorded by this witness were not admissible and further the learned Addl. Sessions Judge closed the evidence of witness and hence the State has filed this Revision Application against the said order passed on 5th of December, 1991 during the deposition of the above said witness.
( 2 ) THE facts go to show that the present respondent along with other accused are charged under the provisions of Narcotic Drugs and Psychotropic substances Act, 1985 and are being tried by the learned Addl. Sessions Judge, mehsana in Sessions Case No. 58/90. It is the case of the prosecution that the present three respondents during Police remand were subjected to "lie Detection test" carried out by Dr. Smt. S. L. Vaya, pw16, Exh. 126. While deposition was being recorded in examination-in-chief,, the objection was raised that the statements recorded by PW16 is confessional in nature and she had no authority to record the statements of the accused though it was urged on behalf of the prosecution that the evidence was relevant under Section 45 of the Indian evidence Act but the learned Addl. Sessions Judge not only held that the statements of the accused were inadmissible but closed the evidence of the witness PW16 at that stage.
( 3 ) LEARNED Advocate General Mr. S. N. Shelat was heard on behalf of the state - petitioner and learned Sr. Advocate mr. A. D. Shah was heard on behalf of respondent No. l. While learned advocates for respondents No. 2 and 3 are not present.
( 4 ) LEARNED Advocate General Mr. Shelat raised two contentions. First was regarding the stage at which the Court should decide the objections raised during recording of evidence. It was contended that it was obligatory for the learned additional Sessions Judge first to record the evidence fully and then to come finally at the conclusion that what evidence is admissible and relevant. It was utterly erroneous as contended by learned advocate General Mr. Shelat that at this stage for the learned Addl. Sessions Judge to come to the conclusion while recording the evidence that the statements were not admissible and that it was also utterly erroneous to close the evidence of PW16. The other contention which Mr. Shelat urged was in respect of the legal aspects that the evidence of PW16 was relevant under Section 45 of the Indian Evidence act as well as Section 293 of the Criminal procedure Code sub-sec. (4) (e) and it was also urged that PW16 is not a Police officer and, therefore the statements recorded by her of the present respondent is not hit by Section 25 or 26 of the Indian evidence Act. Learned Advocate General mr. Shelat contended that the statements were relevant and admissible as extra judicial confession. At last, it:-was urged that learned Judge ought to have allowed to continue the deposition and take the evidence on record and thereafter ought to have come to the conclusion that which part of the evidence is relevant and admissible and which part of the evidence is not relevant and inadmissible. For the contention regarding the stage at which the Court is required to decide the objections, learned Advocate General relied on a decision of the Supreme court in the matter of BIPIN SHANTILAL panchal vs STATE OF GUJARAT. reported in 2000 (2) GLH 545, wherein the supreme Court deprecated archaic practice of Trial Courts not to proceed further without passing order on an obje
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