JUDGMENT
Joytosh Banerjee, J.
1. Heard the learned Advocates for both sides.
2. The argument is concluded.
3. The hearing arises out of an application under Article 227 of the Constitution of India and it is directed against Order No. 13 dated 25.1.2001 passed by the learned Additional District Judge, 4th Court, Howrah in Civil Revision No. 156 of 1999 which arose out of Order No. 112 dated 9.7.1999 passed by Civil Judge (Junior Division), 3rd Court, Howrah in Title Suit No. 1 of 1994.
4. A prayer was made before the Trial Court, Civil Judge (Junior Division), 3rd Court, Howrah for admitting the certified copies of the order-sheet, police report and the petition in connection with a misc. case under Section 144 of Cr.PC. The Trial Court held that the order-sheet of the proceeding under Section 144 of Cr.PC was public document and the other documents, namely, the copy of the petition under Section 144 of Cr.PC and the police report in connection thereof were not public documents and, as such, the certified copies of those documents could not be accepted.
5. Being aggrieved by such order, a revision was made before the learned Additional District Judge as noted above and the learned Additional District Judge by the impugned order clearly held that the police report and the petition under Section 144 of Cr. PC were not public documents and, therefore, the learned Trial Court was justified in not admitting those documents.
6. Being aggrieved by such order, the petitioners has come up before this Court with an application under Article 227 of the Constitution of India.
7. When the matter has come up for hearing, at that time the learned Advocate for the petitioners has clearly conceded that an application under Section 144 of Cr. PC is not a public document and so the Courts below were justified in refusing to admit the certified copies of the application under Section 144 of Cr. PC. Here, moot question centres round whether a police report submitted in connection with a proceeding under Sections 144 & 145 of Cr.PC is a public document. While the Id. Advocate for the petitioners submits that the report submitted by the police in connection with the proceeding under Section 144 of Cr.PC is a public document and, therefore, a certified copy of such report should have been admitted in the evidence.
8. The learned Advocate for the opposite party, on the other hand, has strongly resisted such position and she submits that such report cannot be a public document.
9. In support of his contention, the learned Advocate for the petitioners has referred to the case of Radharani Chowdhury and Ors. v. State of West Bengal reported in 1999(11) Calcutta High Court Notes page 120 in paragraph 20 at page 129.
10. The learned Division Bench made the following relevant observation on which reliance has been placed by the learned Advocate for the petitioners in support of his aforesaid contention :
But the police report submitted by the police in connection with the aforesaid proceeding under Section 145 Cr. PC is certainly a public document within the meaning of Section 74 of the Evidence Act. Section 2(1)(h) Cr. PC defines public officer, inter alia, to mean every officer in the service or pay of the Government or remunerated by fees or commission for the purpose of any public duty. The duty performed by a police officer is certainly a public duty and undoubtedly he is in the service or pay of the Government. Therefore, undoubtedly, a police officer is a public officer and a report submitted by him in connection with a proceeding under Section 145 of Cr. PC is certainly a record of the acts of a public officer.
Now, in order to resist such argument, the learned Advocate for the opposite party has referred to the case of Madamanchi Rameppa and Anr. v. Muthalura Bojjappa . Head note (b):
Evidence Act, 1872 Section 77 – certified copy of public document is admissible in evidence without being proved by calling a witness, no objection raised to move either in Trial Court or any Appeal Court, High Court committed error in rejecting such document on the ground that it had not been proved.
11. In this way, the Id. Advocate actually has wanted to draw my attention to the observation of the Apex Court, in that reported decision which is made in paragraph 9 of the judgment. There the Apex Court found that the High Court in deciding a second appeal held that one of the documents, namely, Exhibit A-8 had not been proved at all and could not, therefore, be received in evidence. There, the Apex Court proceeded to record that even the Id. Advocate for the respondent Mr. Shastri fairly conceded before the Apex Court that such a finding on the part of the High Court was plainly erroneous in law. The Apex Court observed that documents in question being a certified copy of a public document need not to be proved by calling a witness. This position of law is well-settled and by referring this, the Id. Advocate cannot contradict the finding arrived at by the Division Bench of this Court of which I have already referred to.
12. The Id. Advocate for the opposite party has also relied on another decision of the Apex Court in the case of Harpal Singh and Anr. v. State of Himachal Pradesh 1981 Cr. LJ 1.
13. In that case, an argument was advanced that it was a case of sexual intercourse by consent. So, question was whether the age of the victim girl was established at the time of the trial and the Hon’ble Court found that the prosecution proved the age of the girl by overwhelming evidence and in doing so the Apex Court also mentioned that one of the evidences on which reliance could be placed to come to a conclusion on this point was Exhibit PD, a certified copy of the relevant entry in the birth register which showed the age of the victim girl. It was argued on behalf of the accused that in the absence of the examination of the officer/chowkidar concerned who recorded the entry, it was inadmissible in evidence. But such argument was rejected by the Apex Court by observing that such entry was made by the concerned officer in the discharge of his official duties and, therefore, it is clearly admissible under Section 35 of the Evidence Act. I must observe that this reported case too, is not relevant for deciding the question in issue, that is to say, whether the report submitted by the police officer in connection with a proceeding under Sections 144 & 145 Cr. PC is a public document or not.
14. Lastly, she has relied on a decision of the Gujarat High Court in the case of Patel Maganbhai Bapujibhai and Ors. v. Patel Ishwarbhai Motibhai and Ors. . lt was decided there that statement recorded by a police officer in course of investigation of a case under Section 161 Cr.PC is not a public document. This also will not help the Id. Advocate to advance her argument that the report submitted by the police officer in connection with the proceeding as noted above is not a public document. On the other hand, I have already noted that the Id. Advocate for the petitioners has placed reliance on a decision of a Division Bench of our High Court which is binding on me and I respectfully follow the same. Accordingly, I hold that the Trial Court ought to have admitted certified copy of the report submitted by the police officer in connection with the proceeding under Section 144 Cr.PC and in refusing to do so such Court has committed an error which should be rectified.
15. Accordingly, the proceeding is disposed of with a direction upon the Trial Court to allow the petitioners to produce the certified copy of the police report submitted in connection with the proceeding under Section 144 Cr.PC and in the event of such production certified copy of the police report will be admitted in evidence.