74. Public documents.—The following documents are public documents—
(1) documents forming the acts or records of the acts—
(i) of the sovereign authority,
(ii) of official bodies and tribunals, and
(iii) of public officers, legislative, judicial and executive, [of any part of India or of the Commonwealth], or of a foreign country;
(2) public records kept [in any State] of private documents.
Print Page4.2. Even the relief which is sought in the present writ petition directing that all the challans/chargesheets filed Under Section 173 Code of Criminal Procedure shall be put on public domain/websites of the State Governments shall be contrary to the Scheme of the Code of Criminal Procedure. As per Section 207 Code of Criminal Procedure a duty is cast upon the Investigating Officer to supply to the Accused the copy of the police report and other documents including the First Information Report recorded Under Section 154 Code of Criminal Procedure and the statements recorded Under Sub-section 3 of Section 161 Code of Criminal Procedure.
4.5. Therefore on conjoint reading of Section 173 Code of Criminal Procedure and Section 207 Code of Criminal Procedure the Investigating Agency is required to furnish the copies of the report along with the relevant documents to be relied upon by the prosecution to the Accused and to none others. Therefore, if the relief as prayed in the present petition is allowed and all the chargesheets and relevant documents produced along with the chargesheets are put on the public domain or on the websites of the State Governments it will be contrary to the Scheme of the Code of Criminal Procedure and it may as such violate the rights of the Accused as well as the victim and/or even the investigating agency. Putting the FIR on the website cannot be equated with putting the chargesheets along with the relevant documents on the public domain and on the websites of the State Governments.
5. Now so far as the reliance placed upon on Sections 74 & 76 of the Evidence Act is concerned, the reliance placed upon the said provisions are also absolutely misconceived and misplaced. Documents mentioned in Section 74 of the Evidence Act only can be said to be public documents, the certified copies of which are to be given by the concerned police officer having the custody of such a public document. Copy of the chargesheet along with the necessary documents cannot be said to be public documents within the definition of Public Documents as per Section 74 of the Evidence Act. As per Section 75 of the Evidence Act all other documents other than the documents mentioned in Section 74 of the Evidence Act are all private documents. Therefore, the chargesheet/documents along with the chargesheet cannot be said to be public documents Under Section 74 of the Evidence Act, reliance placed upon Sections 74 & 76 of the Evidence Act is absolutely misplaced.
IN THE SUPREME COURT OF INDIA
Writ Petition (Civil) No. 1126 of 2022
Decided On: 20.01.2023
Saurav Das Vs. Union of India (UOI) and Ors.
Hon'ble Judges/Coram:
M.R. Shah and C.T. Ravikumar, JJ.
Author: M.R. Shah, J.
Citation: MANU/SC/0066/2023.
Print Page4.2 Even the relief which is sought in the present writ petition directing that all the challans/chargesheets filed under Section 173 Cr.P.C. shall be put on public domain/websites of the State Governments shall be contrary to the Scheme of the Criminal Procedure Code. As per Section 207 Cr.P.C. a duty is cast upon the Investigating Officer to supply to the accused the copy of the police report and other documents including the First Information Report recorded under Section 154 Cr.P.C. and the statements recorded under sub-Section 3 of Section 161 Cr.P.C.
4.5 Therefore on conjoint reading of Section 173 Cr.P.C. and Section 207 Cr.P.C. the Investigating Agency is required to furnish the copies of the report along with the relevant documents to be relied upon by the prosecution to the accused and to none others. Therefore, if the relief as prayed in the present petition is allowed and all the chargesheets and relevant documents produced along with the chargesheets are put on the public domain or on the websites of the State Governments it will be contrary to the Scheme of the Criminal Procedure Code and it may as such violate the rights of the accused as well as the victim and/or even the investigating agency. Putting the FIR on the website cannot be equated with putting the chargesheets along with the relevant documents on the public domain and on the websites of the State Governments.
5. Now so far as the reliance placed upon on Sections 74 & 76 of the Evidence Act is concerned, the reliance placed upon the said provisions are also absolutely misconceived and misplaced. Documents mentioned in Section 74 of the Evidence Act only can be said to be public documents, the certified copies of which are to be given by the concerned police officer having the custody of such a public document. Copy of the chargesheet along with the necessary documents cannot be said to be public documents within the definition of Public Documents as per Section 74 of the Evidence Act. As per Section 75 of the Evidence Act all other documents other than the documents mentioned in Section 74 of the Evidence Act are all private documents.
Therefore, the chargesheet/documents along with the chargesheet cannot be said to be public documents under Section 74 of the Evidence Act, reliance placed upon Sections 74 & 76 of the Evidence Act is absolutely misplaced.
IN THE SUPREME COURT OF INDIA
ORIGINAL CIVIL JURISDICTION
WRIT PETITION (CIVIL) No.1126 of 2022;
Saurav Das Vs Union of India & Ors.
Coram; M.R. SHAH; J., C.T. RAVIKUMAR; J.
Author: M.R. SHAH, J.
Dated: JANUARY 20, 2023
Print PageThe question that arises for consideration is whether, in the
facts, the respondent No.1 can be compelled to admit Annexure `C’ i.e. transcript of the alleged speech, by taking recourse to the provisions of the Evidence Act. The answer is `No’. The scope and import of Section 294 Cr.P.C is very clear i.e. to shorten the prosecution evidence and to ensure that certain documents when admitted by the accused, need not be proved by the prosecution. The legislative intent was not to bind the accused persons or compel them to admit or deny the genuineness of the documents produced by the prosecution. It is well settled that if an accused is compelled to deny or admit a document, it would be contrary to the constitutional mandate, inasmuch as, it would violate Article 20(3) of the
Constitution of India. In the case of State of Maharashtra vs. Ajay
Dayaram Gopnarayan (Supra), this Court in para 28 has observed as
under:
“…. The intention of the Legislature was not to bind the
accused persons or force him to admit or deny the
genuineness of the documents produced by the prosecution
that is why the court would not be justified in passing the
order directing accused to admit or deny the documents,
obviously since it would violate Article 20(3) of the
Constitution of India.”
Similarly, in Niwas Keshav Raut (Supra), this Court has, in
para 11 observed as under :
“…. 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 witness against himself. In case the
accused chooses to deny the document or just remain silent
in the 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.”
13 Thus, it is clearly evident that an accused cannot be compelled
to admit/deny any document. The right of an accused to remain silent flows
from the Article 20(3) of the Constitution of India and is sacrosanct in a
criminal trial. No Court can compel or direct an accused to admit/deny any
document. It is also not the intent of the legislature under Section 294
Cr.P.C.
14 As noted above, the CD is a document of the petitioner relied
upon by him in the complaint and is also annexed to the list of documents.
Merely because a document of the complainant (petitioner) is annexed to
the petition filed by the respondent No. 1, would not make such a document
a `public document’, obtained from whichever source, thus giving a
complete go-by to the complainant (petitioner) from proving the same in
accordance with law. As noted earlier, prosecution/complainant has to
stand on its own feet and prove its case on its own steam.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.376 OF 2019
Rajesh Mahadev Kunte, Vs Rahul Rajeev Gandhi,
CORAM : REVATI MOHITE DERE, J.
PRONOUNCED ON : 20 th SEPTEMBER 2021
Print PageA Division Bench of this Court, in R. Murugesan v. State, [(2014) 1 LW (Cri) 339], in which, one of us (P.N. Prakash, J.) was a part, has elaborately discussed the evidentiary value of the statement of a witness recorded under Section 164 Cr.P.C. Despite the directions of the said Division Bench that the Magistrate recording the statement under Section 164 Cr.P.C. need not be examined as a witness, the essence of those directions has not percolated into the subordinate judiciary. In the said judgment, the Division Bench has set out the procedure as to how Public Prosecutors in the Trial Courts should deal with a witness, vis-a-vis, his statement recorded under Section 164 Cr.P.C. The Division Bench has placed reliance upon the judgment of the Supreme Court in State of Delhi v. Shri Ram Lohia, [AIR 1960 SC 490] and the Division Bench judgment of the Andhra Pradesh High Court in Bashapaka Laxmiah v. State of Andhra Pradesh, [2001 Cri LJ 4066], to conclude that a Magistrate recording the statement of a witness under Section 164 Cr.P.C. need not be examined as a witness in the trial of the case. We are extracting below the relevant passages from Shri Ram Lohia (supra) and Bashapaka Laxmiah (supra): Shri Ram Lohia:
“Statements recorded under S. 164 of the Code are not substantive evidence in a case and cannot be made use of except to corroborate or contradict the witness. An admission by a witness that a statement of his was recorded under S. 164 of the Code and that what he had stated there was true would not make the entire statement admissible; much less could any part of it be used as substantive evidence in the case.
A Judge commits an error of law in using the statement of a witness under S. 164 as a substantive evidence in coming to the conclusion that he had been won over.”{Para 55}
56. Bashapaka Laxmiah:
“18. Repeatedly, we have issued instructions that statement under S. 164 Cr.P.C. is not a substantive piece of evidence. It, is not necessary to call the Magistrate to give evidence to prove S. 164 statement. Statements under S. 164 Cr.P.C. are available to the defence for contradiction by obtaining the certified copies. The S. 164 statement recorded by the Magistrate is a public document. Such practice, hereinafter, be stopped.”
57. In Re:—To issue certain guidelines regarding inadequacies and deficiencies in criminal trials, [2017 SCC OnLine SC 298], the Supreme Court has called for remarks from various stakeholders on the suggestions made by Justice Basant, a retired Judge of the Kerala High Court, for streamlining and putting in place good practices in the conduct of criminal trials. One such suggestion is as under:
“11. The practice of omnibus marking of S. 164 statement of witness deserves to be deprecated. The relevant portion of such prior statements of living persons used for contradiction or corroboration u/s 145/157 of the Evidence Act deserves to be marked separately and specifically."
58. In the light of the above discussion, we seek to build upon the Division Bench judgment of this Court in Murugesan (supra) by holding that even in cases, where, the witness completely denies having given a statement under Section 164 Cr.P.C. the Magistrate need not be examined as a witness and the factum of the witness having given such a statement to the Magistrate and the contradiction between his evidence and his previous statement can be proved in the examination of the Investigating Officer, on whose sponsorship, the said witness was produced before the Magistrate for the purpose of recording his statement. This, in our considered opinion, will be in consonance with the observations of the Privy Council in Nazir Ahmad v. The King Emperor, [(1936) 44 LW 583 : AIR 1936 PC 253] and Kashmira Singh v. State of Madhya Pradesh, [AIR 1952 SC 159], about which, we shall discuss in detail in the subsequent paragraphs.
59. A statement recorded under Section 164 Cr.P.C. is a public document within the meaning of Section 74(iii) of the Evidence Act as held by a Full Bench of this Court in State of Madras v. Krishnan, [(1960) 73 LW 713 : AIR 1961 Mad 92]. The original of the statement, which would form part and parcel of the Court records, is a primary evidence under Section 62 of the Evidence Act for proving the fact that the said witness had appeared before the Magistrate on the date found thereon and had given a statement, but, it does not prove the veracity of its contents.
In the High Court of Madras
(Before Indira Banerjee, C.J. and P.N. Prakash, J.)
Murugasamy Vs State
Print PageA statement recorded under Section 164 Cr.P.C. is a public document within the meaning of Section 74(iii) of the Evidence Act as held by a Full Bench of this Court in State of Madras v. Krishnan, [(1960) 73 LW 713 : AIR 1961 Mad 92]. The original of the statement, which would form part and parcel of the Court records, is a primary evidence under Section 62 of the Evidence Act for proving the fact that the said witness had appeared before the Magistrate on the date found thereon and had given a statement, but, it does not prove the veracity of its contents.{Para 59}
In the High Court of Madras
(Before Indira Banerjee, C.J. and P.N. Prakash, J.)
Murugasamy Vs State
Print Page