THE HONOURABLE SRI JUSTICE N.TUKARAMJI Criminal Petition No.3082 of 2024

ORDER

This Criminal Petition is filed under Section 482 of Code of Criminal Procedure, 1973 (for short ‘CrPC’) for quashment of orders dated 29.01.2024 in Crl.R.P.No.8 of 2023 on the file of the Principal Sessions Judge at Mahabubabad wherein the order dated 31.10.2023 passed in Crl.M.P.No.1384 of 2023 in C.C.No.436 of 2014 on the file of the Additional Judicial Magistrate of First Class, at Mahabubabad has been affirmed.

2. I have heard Mr. Srinivasa Rao Pachwa, learned counsel for the petitioner and Mr.Jithender Rao Veeramalla, learned Additional Public Prosecutor, representing the respondent No.1-State.

3. The petitioner, being the de facto complainant, assails the concurrent findings of the courts below. The prosecution had moved an application under Section 159 of the Indian Evidence Act, 1872 (‘the IEA’), seeking the court’s permission to allow the de facto complainant, during his chief examination, to refer to the materials and documents annexed to his complaint. The application was premised on the ground that, due to the petitioner’s advanced age and attendant health ailments, such reference was essential to facilitate and accurately aid his testimony. The trial court dismissed the application, holding that a witness is not permitted to depose by reading from a document. In revision, the Sessions Court affirmed this view. Aggrieved by these concurrent orders, the present petition has been instituted.

4. Learned counsel for the petitioner submits that Section 159 of the Indian Evidence Act, 1872, expressly permits any witness to refresh his memory during the course of evidence, including at the stage of chief examination, without any restriction. In the present case, the transaction in question took place in the year 2005, i.e., nearly eighteen years ago. It is, therefore, reasonable and necessary for the witness to refer to the relevant documents to accurately recall the facts. Counsel contends that denying the witness the opportunity to peruse such documents for the purpose of refreshing his memory would cause prejudice to the prosecution’s case, as an incomplete or inaccurate recollection might arise. Moreover, the defence would retain its full right to test the veracity of the witness’s testimony through cross- examination. Accordingly, it is urged that the petitioner ought to have been permitted to peruse the documents, as prayed for, during his chief examination. In support of this contention, learned counsel has placed reliance on the following authorities: (i) Rajesh Jha v. State of U.P., 2019 SCC OnLine All 5013, and (ii) State of A.P. v. Chimalapati Ganeshwar Rao, AIR 1963 SC 1850.

5. Learned Additional Public Prosecutor fairly submits that the statutory provision itself permits a witness to peruse documents for the purpose of refreshing his memory. Considering that the transaction in question occurred nearly two decades ago, it is contended that permitting the petitioner to do so strictly to the extent permissible under the provision would adequately serve the ends of justice.

6. None appeared for the respondent No.2.

7. I have perused the materials on record.

8. The petitioner, who is the de facto complainant, seeks the Court’s permission to refer to the documents on record for the purpose of refreshing his memory. It is undisputed that the transaction in question took place in the year 2008, and a considerable period of time has since elapsed.

9. Before proceeding to examine the merits of the case, it is appropriate to first consider the scope and import of the relevant statutory provision. For a clearer appreciation, Section 159 of the Indian Evidence Act, 1872, is reproduced below:

“159. Refreshing memory. A witness may, while under examination, refresh his memory by referring to any writing made by himself at the time of the transaction concerning which he is questioned, or so soon afterwards that the Court considers it likely that the trans