Are you looking for a legal research tool ?
Get Started
Do check other products like LIBIL, a legal due diligence tool to get a litigation check report and Case Management tool to monitor and collaborate on cases.

Atar Singh v. State Of Rajasthan, Through Pp

Atar Singh v. State Of Rajasthan, Through Pp

(High Court Of Rajasthan, Jodhpur Bench)

S.B. Criminal Misc(Pet.) No. 6513/2021 | 04-05-2022

1. By way of present petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Code’), petitioner has challenged the order dated 11.10.2021, passed by learned Additional Sessions Judge, No.1, Chittorgarh (hereinafter referred to as ‘the Appellate Court’).

2. Succinctly narrated the facts appertain are that the petitioner has preferred an appeal against order dated 02.04.2014 passed by the trial Court whereby the petitioner was convicted for offences under Sections 409, 420, 467, 468 and 120B of the Indian Penal Code.

3. During the pendency of the appeal, the petitioner moved two applications dated 17.05.2016 and 23.12.2017 under Section 391 of the Code, which were allowed by the Appellate Court vide its order dated 01.03.2021 and the documents filed by the petitioner were taken on record.

4. After the documents were taken on record, on 31.03.2021, the petitioner moved another application under Section 391 of the Code and requested the Appellate Court to permit him to mark exhibits on the above referred documents, which were taken on record pursuant to order dated 01.03.2021.

5. The Appellate Court, vide its order impugned dated 11.10.2021, rejected petitioner’s application, inter alia, observing that the case relates to an incident which took place in the year 1993 and if the petitioner is permitted to mark exhibits upon the said documents, the matter will be required to be sent back to the trial Court and the same would delay the proceedings.

6. While rejecting the application, the Appellate court has also observed that since the documents were certified copies obtained under Right to Information Act, 2005, the Appellate Court could well consider them while hearing the appeal and decide the appeal in accordance with law.

7. Mr. Kuldeep Sharma, learned counsel for the petitioner, assailing the order aforesaid, argued that the Appellate Court has erred in rejecting petitioner’s application dated 31.03.2021. He argued that unless the exhibits are marked on the documents, the same cannot be treated to have been proved and taken on record. He added that once the documents were taken on record, it was incumbent upon the Appellate Court to have permitted the petitioner to mark exhibit on the documents and prove them in accordance with law so as to enable the Court to consider them.

8. Mr. Gaurav Singh, learned Public Prosecutor, submitted that the petitioner is unnecessarily protracting the proceedings and the present application is nothing but an attempt in this direction, as the Appellate Court would have to remand the matter to the trial Court.

9. Having heard learned counsel for the parties and upon perusal of material available on record, this Court is of the considered opinion that the Appellate Court has erred in rejecting petitioner’s application dated 31.03.2021.

10. True it is, that the documents have been taken on record by virtue of order dated 01.03.2021. But the mere fact that the documents have been taken on record is not by itself sufficient for enabling the Court to consider and base its finding on them. Unless the documents are exhibited and proved by necessary deposition of the person producing the same, the documents can neither be read in evidence nor can the same be used for disposal of the appeal.

11. Once the documents are taken on record, the party bringing them in is required to testify the facts stated in the documents, subject of course to the just objection of the opposite party about its admissibility and genuineness etc. The documents in question are certified copies, hence the contents thereof may not be required to be proved but they are required to be exhibited and a formal deposition about their existence and relevance is necessary. For this purpose, if the petitioner is required to be called in witness-box, it has to be done. If the Appellate Court were to consider them and base its finding, then, it is necessary that exhibits are marked on them and they are led in evidence. Provisions of Sections 160, 161 and 165 of the Evidence Act cannot be given a go-bye in a zeal to decide pending appeal.

12. The Appellate Court proceeded in undue haste and has been moved by the fact that the offence in question was committed in the year 1993.

13. The fact that the matter is pending for considerable time, cannot be a reason by itself to thwart the process of law and do away with the mandate or requirement of law.

14. So far as Mr. Gaurav Singh’s contention that for the purpose of marking exhibit, the matter will be required to be sent back to the trial Court is concerned, it is to be noted that the powers under Section 391 of the Code can be exercised by the Appellate Court as well. And the Appellate Court itself can permit the party concerned to exhibit them and prove in accordance with law.

15. The present petition is, therefore, allowed; the impugned order dated 11.10.2021 is quashed and set aside; the petitioner’s application dated 31.03.2021 under Section 391 of the Code is hereby allowed.

16. The Appellate Court is directed to allow the petitioner to appear in witness-box and mark exhibits on the documents he had submitted and prove the same by necessary deposition in accordance with law.

17. The stay application also stands disposed of accordingly.

Advocate List

  • Mr. Kuldeep Sharma

  • Mr. Gaurav Singh, PP

Bench
  • HON'BLE MR.&nbsp
  • JUSTICE DINESH MEHTA
Eq Citations
  • LQ
  • LQ/RajHC/2022/4908
Head Note

Criminal Procedure Code, 1973 — Ss. 391 and 482 — Appeal — Exhibits — Marking of — Documents taken on record — Proof of — Documents taken on record by Appellate Court — Held, mere fact that documents have been taken on record is not by itself sufficient for enabling the Court to consider and base its finding on them — Unless the documents are exhibited and proved by necessary deposition of the person producing the same, the documents can neither be read in evidence nor can the same be used for disposal of the appeal — Once the documents are taken on record, the party bringing them in is required to testify the facts stated in the documents, subject of course to the just objection of the opposite party about its admissibility and genuineness etc. The documents in question are certified copies, hence the contents thereof may not be required to be proved but they are required to be exhibited and a formal deposition about their existence and relevance is necessary — For this purpose, if the petitioner is required to be called in witness-box, it has to be done — If the Appellate Court were to consider them and base its finding, then, it is necessary that exhibits are marked on them and they are led in evidence — Provisions of Ss. 160, 161 and 165 of the Evidence Act, 1872 cannot be given a go-bye in a zeal to decide pending appeal — Appellate Court proceeded in undue haste and has been moved by the fact that the offence in question was committed in 1993 — Held, the fact that the matter is pending for considerable time, cannot be a reason by itself to thwart the process of law and do away with the mandate or requirement of law — Appellate Court itself can permit the party concerned to exhibit them and prove in accordance with law — Evidence Act, 1872, Ss. 160, 161 and 165 (Paras 10 to 16)