Tuesday, 1 November 2016

How to appreciate evidence if documents are produced as per S 294 of CRPC?

The   significant   aspect   of   Section   294   Cr.P.C.,   one   must
note, is that it no where places any  embargo upon the prosecution or
accused  to  file   a document   at  a stage   subsequent   to  filing  of   the
charge­sheet.     It   only   says   that   if   any   document   is   sought   to   be
produced before the Court, it should be included in the list of the
documents and then the other side should be called upon to either
admit   or   deny   the   genuineness   of   the   document.    It   means   by
necessary implication that a document can be filed subsequent to filing
of   charge­sheet   subject   to   following   the   procedure   prescribed   in
Section 294.  Then, it is not necessary for the accused, who is called
upon to admit or deny the document,  to choose either of these options
and he may simply keep silence in respect of the document which may
as well be an expression of his fundamental right under Article 20(3)
of the Constitution of India which says that no person accused of any
offence shall be compelled to be a witness against himself.   In case the
accused chooses to deny the document or just remains silent in that
regard, the document cannot be admitted in evidence and it would be
required to be proved in accordance with law,  having regard to the
right of the accused under Article 20(3) of the Constitution of India.
However, when the prosecution, which is called upon by the accused,
to admit or deny the document, does neither of the things and chooses
to stay put with the document, a different situation would arise.   In
such   a   case,   perspective   of   the   right   would   change   from   that   of
fundamental to procedural, for, Article 20(3) is available to only those
persons who are accused of any offence and not to those who allege
commission of offence by others.  Therefore, a criminal Court would
have to meet silence of the prosecution in respect of a document in a
different way, depending on the nature and contents of the document
and the law of proof of documents applicable to the fact situation.  In
other words, facts of each case would trigger the effect of prosecution
silence under Section 294 of Code of Criminal Procedure.  
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 4712 OF 2014
Niwas Keshav Raut,

V
 State of Maharashtra
CORAM :  S. B. SHUKRE, J.
DATE      :  28th JULY, 2015.
Citation:2016 ALLMR(CRI)3742

Heard.  Rule.  Rule made returnable forthwith.  Heard 
finally by consent.
2. By this petition, the petitioner, who is an accused facing
prosecution for the offences punishable under Sections 498­A and 306
of Indian Penal Code, prays for quashing and setting aside of the order
dated   17.10.2014   passed   by   the   learned   Sessions   Judge,   Satara,

allowing the application vide Ex.27 of the prosecution for filing of one
document, a chit, alleged to be under the hand writing of deceased
Savita, during the course of evidence of prosecution witness P.W.1
Ramesh Shinde.
3. It so happened that on 22.9.2014, P.W.1 Ramesh Shinde
was being examined as a prosecution witness by the prosecution, when
at the close of his examination­in­chief, P.W.1 Ramesh Shinde deposed
before the Court that  on last Saturday, i.e. on or about 20.9.2014, he
discovered one chit from the case of spectacles of deceased Savita  and
on reading its contents, he found that the contents furnished  some
proof   in   support   of   the   prosecution   case   against   the   accused.
Therefore, on the request of learned APP, the further examination­inchief
  of   the   witness   was   deferred   and   the   learned   APP   filed   an
application vide Ex.27 seeking permission of the Court to produce the
chit before the Court.   The application was strongly opposed by the
accused on the ground that there was no provision under law which
allows   a   witness   to   produce   a  document   before   the   Court   in   this
fashion and also on the ground that allowing of the application would
cause prejudice to the defence of the accused.
4. Upon hearing the prosecution as well as learned counsel for
the accused, learned Sessions Judge found that no prejudice would be
caused to the accused  as the document sought to be produced was at
the   time   when   examination­in­chief   was   not   over     and   crossexamination
was just to commence and that there was no provision
under the law   in not allowing such an application.   The order was
passed by the learned Sessions Judge on 17.10.2014 and it is this
order which has been challenged in the present writ petition.
5. I have heard learned counsel for the petitioner and learned
APP for the State.  I have carefully gone through the impugned order
as well as the relevant documents filed along with the paper­book,
with   the   assistance   of   learned   APP   and   learned   counsel   for   the
petitioner.
6. Learned counsel for the petitioner submits that there is no
provision under law which allows the prosecution to file before the
Court a document on record at the time of recording of evidence of
prosecution.   He submits that once the charge­sheet is filed and the
prosecution case reaches the stage of recording of evidence, under
Section 294 of Code of Criminal Procedure, a document cannot be filed
by the prosecution before the Court.  He places his reliance on the case
of  State   of   Maharashtra   v.   Ajay   Dayaram   Gopnarayan   &   anr.
reported in 2014 ALL MR (Cri) 2141, decided by the Division Bench
of this Court.
7. According   to   learned   APP,   there   is   no   provision   in   law
which   prohibits   the   prosecution   from   filing   before   the   Court   a
document which would be supportive of  its case against the accused
and that Section 294, Cr.P.C., is only a procedural provision which
regulates the manner in which a document can be filed before the
Court and also the way it should be admitted in evidence and nothing
more.     She further submits that this procedure, as seen from the
impugned order, has already been followed by the prosecution in this
case and, therefore, according to her, there is no merit in the present
writ petition.
8. Sofar as Section 294, Cr.P.C., is concerned, I must say that
learned APP is right when she submits that Section 294 is a procedural
provision which lays down  that as to how and when a  document can
be admitted in evidence or can be required to be proved in accordance
with law.   It only says that where any document is filed before any
Court   by   the   prosecution   or   the   accused,   the   particulars   of   such
document   should   be   included   in   the   list   and   thereafter   the
prosecution/defence   should   be   called   upon   to   admit   or   deny   the
genuineness of such a document.  It lays down that the document must
be produced before the Court along with the list of documents so that
it becomes known to the  other side as to which document is sought to
be produced before the Court and how the document should be met or
considered  by way of  resistance  or  admission.   Sub­section   (3)  of
Section 294 prescribes that where the genuineness of any document is
not disputed, such document may be read in evidence in any inquiry,
trial or other proceeding.
9. In the case of Ajay, supra, the Division Bench of this Court,
while   interpreting   Section   294   of   Code   of   Criminal   Procedure,
observed that Section 294 requires that particulars of the document
sought to be filed in the Court must be included in the list and  the
documents which are not included in the list, as contemplated by
Section 294(1), cannot be put forth for admission or denial nor can be
exhibited or read in evidence without proving them as per law.
10. Thus,   the   Division   Bench     is   of   the   opinion   that   what
Section 294 does is to regulate the procedure of filing of a document
before the Court and the treatment that it must receive from the Court.
11. The   significant   aspect   of   Section   294   Cr.P.C.,   one   must
note, is that it no where places any  embargo upon the prosecution or
accused  to  file   a document   at  a stage   subsequent   to  filing  of   the
charge­sheet.     It   only   says   that   if   any   document   is   sought   to   be
produced before the Court, it should be included in the list of the
documents and then the other side should be called upon to either
admit   or   deny   the   genuineness   of   the   document.    It   means   by
necessary implication that a document can be filed subsequent to filing
of   charge­sheet   subject   to   following   the   procedure   prescribed   in
Section 294.  Then, it is not necessary for the accused, who is called
upon to admit or deny the document,  to choose either of these options
and he may simply keep silence in respect of the document which may
as well be an expression of his fundamental right under Article 20(3)
of the Constitution of India which says that no person accused of any
offence shall be compelled to be a witness against himself.   In case the
accused chooses to deny the document or just remains silent in that
regard, the document cannot be admitted in evidence and it would be
required to be proved in accordance with law,  having regard to the
right of the accused under Article 20(3) of the Constitution of India.
However, when the prosecution, which is called upon by the accused,
to admit or deny the document, does neither of the things and chooses
to stay put with the document, a different situation would arise.   In
such   a   case,   perspective   of   the   right   would   change   from   that   of
fundamental to procedural, for, Article 20(3) is available to only those
persons who are accused of any offence and not to those who allege
commission of offence by others.  Therefore, a criminal Court would
have to meet silence of the prosecution in respect of a document in a
different way, depending on the nature and contents of the document
and the law of proof of documents applicable to the fact situation.  In
other words, facts of each case would trigger the effect of prosecution
silence under Section 294 of Code of Criminal Procedure.   Having
analysed Section 294, Cr.P.C., so, let us now examine the impugned
order for its congruence to law or otherwise.
12. On perusal of the impugned order, I find that the   aforestated
 requirements of law have been followed by the learned Sessions
Judge.  He has considered the fact that as cross­examination has not
begun there would be no question of   causing of any prejudice to
accused, and rightly so.  He has  observed that so far as the proof and
effect of  the document is concerned, same would have to  be gone into
at an appropriate stage, which again cannot be said to be   a view
standing opposite to law.  Therefore, I find neither any illegality nor
arbitrariness in the impugned order.  There is no merit in the present
writ petition and it deserves to be dismissed.
13. Writ petition stands dismissed.  Rule is discharged.
                       
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