THE HONOURABLE SRI JUSTICE K.SURENDER CRIMINAL PETITION No.1109 OF 2025

ORDER:

This Criminal Petition is filed under Section 528 of BNSS by the petitioner/accused No.1 to quash the order dated 18.12.2024 marking the affidavit dated 08.03.2024 as Ex.P4 in C.C.No.246 of 2015 on the file of XV Additional Chief Metropolitan Magistrate, Hyderabad, and recall Ex.P4.

2. The petitioner is aggrieved by marking of Ex.P4 which is an affidavit dated 08.03.2014. The said affidavit allegedly signed by the petitioner was brought on record by the prosecution, though an objection was raised during the course of trial that the said affidavit cannot be marked.

3. Any trial Court would mark the documents in a criminal trial when the document is placed before it. However, the contents of any such document cannot be read unless they are proved. Merely marking Ex.P4 will not entitle the prosecution to ask the Court to consider the contents of Ex.P4. The said contents can only be looked into when there is admissible evidence about the contents being correct.

Merely marking documents will not dispense with the proof of contents of the documents.

4. In Ayaaubkhan Noorkhan Pathan v. State of Maharashtra, (2013) 4 SCC 465, the Hon’ble Supreme Court held as follows:

“Affidavit - whether evidence within the meaning of Section 3 of the Evidence Act, 1872:

31. It is a settled legal proposition that an affidavit is not evidence within the meaning of Section 3 of the Indian Evidence Act, 1872 (hereinafter referred to as the ‘Evidence Act’).

Affidavits are therefore, not included within the purview of the definition of "evidence" as has been given in Section 3 of the Evidence Act, and the same can be used as "evidence" only if, for sufficient reasons, the Court passes an order under Order XIX of the Code of Civil Procedure, 1908 (hereinafter referred to as the ‘CPC’). Thus, the filing of an affidavit of one’s own statement, in one’s own favour, cannot be regarded as sufficient evidence for any Court or Tribunal, on the basis of which it can come to a conclusion as regards a particular fact-situation. (Vide: Sudha Devi v. M.P. Narayanan & Ors., AIR 1988 SC 1381; and Range Forest Officer v. S.T.

Hadimani, AIR 2002 SC 1147).

36. Therefore, affidavits in the light of the aforesaid discussion are not considered to be evidence, within the meaning of Section 3 of the Evidence Act. However, in a case where the deponent

is available for cross-examination, and opportunity is given to the other side to cross-examine him, the same can be relied upon. Such view, stands fully affirmed particularly, in view of the amended provisions of Order XVIII, Rules 4 & 5 CPC. In certain other circumstances, in order to avoid technicalities of procedure, the legislature, or a court/tribunal, can even lay down a procedure to meet the requirement of compliance with the principles of natural justice, and thus, the case will be examined in the light of those statutory rules etc. as framed by the aforementioned authorities.”

5. Marking of the documents cannot be interfered with. However, the contents in the said affidavit are subject to proof and relevancy during the course of trial.

6. With the above said observations, this Criminal Petition is disposed of.

Miscellaneous Petitions pending, if any, shall stand closed.

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K.SURENDER, J Date: 23.04.2025 PNS THE HONOURABLE SRI JUSTICE K.SURENDER CRIMINAL PETITION No.1109 OF 2025 Date: 23.04.2025 PNS