IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.42521 of 2007 The State of Bihar ---------------------Petitioner Versus 1. Ram Lakhan Singh son of Ram Chandra Singh, resident of Bihat tola Ibrahimpur, P.S.-Barauni, District- Begusarai. 2. Birendra Ishwar @ Sosan son of Devendra Singh resident of Sibri Cheria Bariarpur, P.S.-Manjhaul, District- Begusarai. 3. Suraj Singh @ Surya Bhan Singh son of Ram Nandan Singh, resident of Mokama, Sankar Bar Tola, Police Station-Mokama, District-Patna. ------------------Opposite Parties ----------------------------------
For the Petitioner:- Mr. Shyameshwar Dayal, Advocate For the Opposite Party No. 1:- Mr. N.K. Agrawal, Senior Advocate Mr. Vijay Anand, Advocate For the Opposite party No. 3: - Mr. Rana Pratap Singh, Sr. Advocate Mr. Raj Kumar, Advocate
15. 21.12.2011 Heard Mr. Shyameshwar Dayal, learned counsel for the petitioner, Mr. N. K. Agrawal, learned senior counsel for opposite party no. 1 and Mr. Rana Pratap Singh, learned senior counsel for opposite party no. 3.
This application has been filed for quashing the order dated 6.8.2007 passed by the Additional Sessions Judge, F.T.C. IV, Begusarai in Sessions Trial No. 275 of 1993 by which he has rejected the petition filed by the prosecution under Section 294 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the „Code‟) for taking into evidence the sanction order of the District Magistrate, 2 Begusarai under Section 39 of the Arms Act (hereinafter referred to as the „Act‟).
The brief facts relevant for the disposal of the present application are as under:-
Pursuant to the F.I.R. lodged against opposite parties under Sections 353, 307/34 of the Indian Penal Code as well as Sections 25 (1-B)A, 26, 27 and 35 of the Act in Barauni P.S. Case No. 406 of 1992 dated 1.10.1992 in the District of Begusarai, the sanction appears to have been accorded by the then District Magistrate, Begusarai as contained in Memo No. 1968 dated 23.12.1992 under Section 39 of the Act for prosecution under Sections 25 (1-B)A/26 of the Act as is required under the Act. During the course of trial, the prosecution while examining its witnesses got the said sanction order exhibited on 28.11.2006. Being aggrieved by the said order by which the sanction order was exhibited, the opposite party no. 2 moved this Court in Cr. Misc. No. 53830 of 2006 and by order dated 8.1.2007, this Court set aside the said order on the ground that Section 311 of the Code could not be invoked for taking such document as evidence and the provision which was applicable was Section 294 of the Code. However, after setting aside the order dated 28.11.2006 a direction was given to the Court below to 3 take steps under Section 294 of the Code for admission of the document if required for just decision of the case. This occasioned passing of the impugned order dated 6.8.2007 by which the Court below has rejected the prayer of the prosecution for marking the sanction order as an exhibit under Section 294 of the Code on the ground that in the rejoinder filed on behalf of opposite parties no. 1 and 2 the stand was that the document is forged and manufactured thereby disputing the genuineness of the said document.
Learned counsel for the petitioner submits that the order impugned cannot be sustained since the same is erroneous inter alia on the ground that from very perusal of order dated 8.1.2007 passed in Cr. Misc. No. 53830 of 2006, this Court had directed the Court below to take steps under Section 294 of the Code for admission of the document if required for just decision of the case. From the said order of remand it is clear that this Court has directed the Court below to take steps under Section 294 of the Code which reads as under:-
"294. (1) No formal proof of certain documents.-Where any document is filed before any Court by the prosecution or the accused, the particulars of every such document shall be included in a list and the prosecution or the accused, as the case may be, or the pleader for the prosecution or the accused, 4 if any, shall be called upon to admit or deny the genuineness of each such document.
(2) The list of documents shall be in such form as may be prescribed by the State Government.
(3) Where the genuineness of any document is not disputed, such document may be read in evidence in any inquiry, trial or other proceeding under this Code without proof of the signature of the person to whom it purports to be signed.
Provided that the Court may, in its discretion, require such signature to be proved."
Learned counsel submits that the Court below has only been given discretion to decide whether the document was required for just decision of the case and in fact under a direction of this Court, the Court below was obliged to take steps under Section 294 of the Code. Thus, as per the provisions of Section 294 (3) of the Code, if the Court felt that the genuineness of the document was in doubt then as per the proviso the Court in its discretion, could have got the signature proved. The Court below not doing the same and only relying upon the contention of the opposite parties while rejecting the prayer of the prosecution, according to learned counsel, was in violation of both the spirit of the Code as well as the specific direction of this Court.
Learned counsel further submits that the Court below has acted in a totally arbitrary manner 5 inasmuch as the mere stand and challenge to the genuineness of the document has been accepted by the Court without complying with the provisions of Section 294 (3) of the Code, since in such a case it becomes imperative that the Court undertakes the exercise of getting the signature verified of any document whose genuineness is contested and challenged by the other side.
Learned counsel for the petitioners has relied upon the following reported judgments.
(1) Saddiq Vs. State (F.B.) reported in 1981 CRI. L. J. 379, the relevant being at paragraph no. 9. This decision is of the Full Bench of the Allahabad High Court.
(2) Boraiah Vs. State (F.B.) reported in 2003 CRI. L. J. 1031, the relevant being at paragraphs no. 9, 10 and 11. This decision is also a Full Bench decision of the Karnataka High Court.
Learned counsel has argued that even otherwise when initially the Court had allowed a particular witness to depose in the case, it was the only appropriate occasion for the prosecution to get its document exhibited. However, since at present the same is not in controversy or under challenge, this Court is not required to go into that aspect. 6
Learned counsel for the petitioners however submits that the genuineness of the sanction order was not challenged by opposite parties either during trial or at the time of the same being exhibited on 28.11.2006 and also not before this Court. In the earlier round in Cr. Misc. No. 53830 of 2006, the only ground on which the marking of the same as an exhibit was challenged was that under Section 311 of the Code no document can be taken as evidence and only witnesses can be examined, cross-examined and re- examined.
Learned counsel for opposite parties has opposed the application mainly on the ground that as per the very provisions of Section 294 of the Code, especially the proviso thereto, the document once challenged and its genuineness being under question, could not have been read in evidence without the signature being proved.
Learned counsel submits that no such application for proving the signature of the author of the document was ever filed by the prosecution and thus the Court has rightly rejected the prayer for making such document an exhibit for being read in evidence.
Learned counsel also raises an issue on 7 facts inasmuch as he submits that the application filed by the prosecution on 17.2.2007 was after the evidence was closed on 30.11.2006 and thus in that view of the matter also the prayer of the prosecution for getting the document exhibited could not be sustained in the eyes of law.
Learned counsel has relied upon the decision in the case of State of Bihar Vs. Pintu Sonar reported in 2005 (1) PLJR 462, the relevant being at paragraph no. 11, for the proposition that the documents challenged cannot be admitted into evidence under Section 294 of the Code in view of sub Section (3) of Section 294 unless the signature of the person who has signed been proved.
Considering the facts and circumstances of the case, this Court would first like to deal with purely the legal aspect of the matter. This legal aspect has to be seen in the present case with reference to the earlier order of this Court in Cr. Misc. No. 53830 of 2006 dated 8.1.2007. Without going into the merits of the earlier case or going behind the order, from the final order which came to be passed and which has attained finality, while setting aside the order dated 28.11.2006, this Court has directed the Court below to take steps under Section 294 of the Code for admission 8 of the document if required in the just decision of the case.
This direction limited the jurisdiction and capacity of the Court below to consider the matter in light of the provisions of Section 294 of the Code but with the rider that the Court had to take steps for admission of the document only if required in just decision of the case.
The Court below appears to have misdirected itself by explaining Section 294 of the Code and not applying its independent and judicial mind as to whether the document sought to be exhibited and admitted was required for just decision of the case. In the present case this Court would only hold that the sanction order is vital to the prosecution since under the Act no prosecution can lie without such sanction.
In view of the admitted facts and relevance of sanction under the Act being involved in the case and for which the opposite parties were facing trial, the sanction order being a vital piece of evidence for sustaining the prosecution, was definitely required to be admitted/exhibited. Once that is clear, the only discretion the Court had in the matter was to take steps as per the proviso of Section 294 of the Code.
On a plain reading of Section 294 of the 9 Code it is clear that such documents which are not contested can only be taken into evidence but there is a proviso inasmuch as the Court may in its discretion require such signature to be proved. In the present case, from the impugned order, it is obvious that the Court was inclined to give credence to the plea of the opposite parties that the document was forged, fabricated and manufactured, thereby meaning that the genuineness was not accepted and thus the Court was left with no option but to go ahead and get the signature proved from the author of the document. The Court thus clearly misconstrued the provisions of Section 294 of the Code as well as misdirected itself and also did not properly comprehend the import of the order dated 8.1.2007 passed in Cr. Misc. No. 53830 of 2006. The contention of learned counsel for the opposite parties is correct to the extent that documents which are contested cannot automatically be read in evidence under Section 294 of the Code, but learned counsel has not addressed this Court on the scope of the proviso to the said Section. Learned counsel is also misplaced in his submission that it was incumbent on the prosecution to pray that the signature may be proved and in the absence of such prayer the petition was rightly dismissed. The law clearly stipulates that it 10 is for the Court concerned in its discretion to get the signature proved. In the present case the scope of Section 294 of the Code has to be harmoniously read and interpreted in light of the order of this Court dated 8.1.2007 which has not been challenged and has attained finality. It is obvious that the onus was on the Court concerned to take appropriate steps for such verification and outright rejection of the prayer of the prosecution, according to this Court, is totally improper. As far as the decision referred to by the learned counsel for the opposite party in the case of State of Bihar Vs. Pintu Sonar (Supra) the proposition cannot be doubted inasmuch as the documents which are challenged cannot automatically be taken as evidence but the proviso to Section 294 of the Code has not been considered in the said decision. Further the said judgment was passed in appeal after the matter had been finally decided in the trial. In the present case the trial is going on and the stage is very much open for the parties to adduce or produce their evidence. Further, the said Judgment has not discussed the proviso which the Court has to take into consideration, at its discretion, when the genuineness of the document has not been accepted.
The other contention of the learned 11 counsel for the opposite parties that the petition came to be filed after closing of evidence is also not appropriate in the facts and circumstances of the present case inasmuch as originally the document was exhibited on 28.11.2006, that is, well within the time when evidence was still being recorded and which was finally closed only on 30.11.2006. It was only due to the matter coming before this Court earlier in Cr. Misc. No. 53830 of 2006, in which by order dated 8.1.2007 the order dated 28.11.2006 making the document as exhibit was set aside with a direction of the Court to take steps under Section 294 of the Code, that such matter came to be considered later on by the Court below. Thus, there cannot be any doubt that there was absolutely no fault or laches on behalf of the prosecution in taking up the matter in right earnest without any undue loss of time. This Court also finds the ratio of the decisions relied upon by learned counsel for the petitioner to be relevant and applicable in the present case.
Considering the facts and circumstances of this case, the order dated 6.8.2007 passed by the Additional Sessions Judge, F.T.C. IV, Begusarai in Sessions Trial No. 275 of 1993 rejecting the petition filed by the prosecution for taking into evidence the 12 sanction order of the District Magistrate, Begusarai is hereby set aside. The matter is remanded to the Court concerned to pass orders afresh in light of the discussions made hereinabove.
The Court is further directed to proceed with the trial expeditiously and conclude the same preferably within nine months from the date of communication of this order.
The application, accordingly, stands allowed.
(Ahsanuddin Amanullah, J.) Anand Kr.