CASE NO.: Appeal (crl.) 995 of 2001 PETITIONER: STATE OF PUNJAB Vs. RESPONDENT: NAIB DIN DATE OF JUDGMENT: 28/09/2001 BENCH: K.T. Thomas & S.N. Variava JUDGMENT:
THOMAS, J.
Leave granted.
The evidence of a policeman was tendered in a criminal
trial by means of an affidavit but it was not accepted by the High
Court and consequently the entire prosecution case was thrown
over board. The conviction and sentence passed on an accused
were resultantly quashed on that ground alone. The State of
Punjab challenges the said verdict of the High Court in this
appeal by special leave.
The respondent was charge-sheeted by the police for the offence
under Section 9 of the Opium Act before the Court of a Judicial
Magistrate of Ist Class, Ludhiana. The substance of the allegation
against him was that he was found in possession of 4.5 kg. Of
opium wrapped in glazed papers on 11.10.1984. The police
version was this: while some of the police personnel were
returning after patrol duty they came across the respondent near
the railway crossing at Kanod village (Sanhewal in Ludhiana
district). On seeing the police he tried to run away from the
scene and then the police felt suspicious about him and
intercepted him. When a search was conducted the police could
seize the contraband article (Opium) from him. The police
officials separated ten grams of Opium as a sample and put it in
a matchbox and sealed it. The sample was forwarded to the
Chemical Examiner, who, after testing the same, reported that it
was opium. On completion of the investigation the police laid the
charge sheet against the respondent.
Prosecution examined Head Constable Dhian Singh as
PW1 and Head Constable Ranji Dass as PW2. Ex. PD is the
report of the Chemical Examiner. Two police personnel (Mr.
Satpal Singh and Mr. Sohan Lal) produced affidavits regarding
the role-played by them in forwarding the sample to the Chemical
Examiner. When the respondent was examined under Section
313 of the Code of Criminal Procedure (For short the Code) he
repudiated the allegations made against him and put forward a
version that the police nurtured vengeance towards him for not
obliging them by becoming a witness in another case. According
to the respondent the police had falsely concocted the present
case against him to teach him a lesson. He further said that he
was taken from his house on the early morning of 11.11.1984
and brought to the police station and foisted the case on him.
The trial magistrate found that the evidence of prosecution
was enough to convict him of the offence under Section 9 of the
Opium Act. Accordingly, he was convicted and sentenced as
aforesaid. The Sessions Court upheld the conviction and
sentence and dismissed the appeal filed by him. Respondent
filed a revision before the High Court of Punjab and Haryana.
Learned Single Judge who disposed of the revision did not think
it necessary to go into the details of the case. The following is
what the learned Single Judge said:
There is no need at all to go into the details
of this case in as much as it has been
undisputed during the course of arguments
before this court that affidavits of police
officials, who had handled the opium and
taken the same to the Chemical Examiner,
even though filed in court, no opportunity
was given to the petitioner to cross examine
those, who had filed their affidavits. In other
words, they were not tendered for cross-
examination. Further, it has remained
undisputed that affidavits of these witnesses
were not even put to petitioner in his
statement under Section 313 Cr.P.C.
We feel that the view adopted by the learned Single judge
was too stilted for approval. At any rate, acquittal of the
accused even without affording an opportunity to the
prosecution to make up the lapse (if it was a lapse) only
resulted in miscarriage of justice. Presently we may consider
whether it is necessary for the prosecution, as an indispensable
course to examine the police official who played only a formal
role during investigation. In this context Section 296 of the
Code can be read:
(1) The evidence of any person whose evidence
is of a formal character may be given by affidavit
and may, subject to all just exceptions, be read
in evidence in any inquiry, trial or other
proceeding under this Code.
(2) The Court may, if it thinks fit, and shall,
on the application of the prosecution or the
accused, summon and examine any such person
as to the facts contained in his affidavits.
The normal mode of giving evidence is by examining the
witness in Court. But that course involves, quite often, spending
of time of the witness, the trouble to reach the court and wait till
he is called by the Court, besides all the strain in answering
questions and cross-questions in open court. It also involves
costs which on many occasions are not small. Should a person
be troubled by compelling him to go to the court and depose if
the evidence which he is to give is purely of a formal nature? The
enabling provision of Section 296 is thus a departure from the
usual mode of giving evidence. The object of providing such an
exception is to help the court to gain the time and cost, besides
relieving the witness of his troubles, when all that the said
witness has to say in court relates only to some formal points.
What is meant by an evidence of a formal character? It
depends upon the facts of the case. Quite often different steps
adopted by police officers during the investigation might relate
to formalities prescribed by law. Evidence, if necessary on
those formalities, should normally be tendered by affidavits and
not by examining all such policemen in court. If any party to a
lis wishes to examine the deponent of the affidavit it is open to
him to make an application before the Court that he requires
the deponent to be examined or cross-examined in Court. This
is provided in sub-section (2) of Section 296 of the Code. When
any such application is made it is the duty of the Court to call
such person to the court for the purpose of being examined.
In Shankaria vs. State of Rajasthan (1978) 4 SCC 453
this Court accepted the evidence tendered on affidavit filed by a
policeman who had taken specimen finger-prints of the accused
in the case. The contention advanced in this Court that the
said affidavit should not be relied on was repelled by the three-
judge bench in the afore-cited decision.
In the present case, the facts stated in the affidavit were
purely of a formal character. At any rate, even the defence
could not dispute that aspect because no request or motion was
made on behalf of the accused to summon the deponents of
those affidavits to be examined in Court. In such a situation it
was quite improper that the High Court used such a premise
for setting aside the conviction and sentence passed on the
respondent, that too in revisional proceedings.
Added to the above, learned Single Judge observed that
the contents of the said affidavit were not put to the accused
during the examination under Section 313 of the Code.
Learned Single judge, on that score also, over-looked the formal
nature of the evidence. The substantive evidence relating to the
sample is the result of the chemical examination. There is no
grievance for the accused that the trial court did not put that
aspect to the accused when he was questioned under Section
313 of the Code. If so it was too pedantic an insistence that
every item of evidence, even of a formal nature, should also
form part of the questions under Section 313 of the Code.
That apart, respondent failed to show that there was any
failure of justice on account of the omission to put a question
concerning such formal evidence when he was examined under
Section 313 of the code. No objection was raised in the trial
court on the ground of such omission. No ground was taken up
in the appellate court on such ground. If any appellate court or
revisional court comes across that the trial court had not put
any question to an accused even if it is of a vital nature, such
omission alone should not result in setting aside the conviction
and sentence as an inevitable consequence. Effort should be
made to undo or correct the lapse. If it is not possible to
correct it by any means the court should then consider the
impact of the lapse on the overall aspect of the case. After
keeping that particular item of evidence aside, if the remaining
evidence is sufficient to bring home the guilt of the accused, the
lapse does not matter much, and can be sidelined justifiably.
But if the lapse is so vital as would affect the entire case, the
appellate or revisional court can endeavour to see whether it
could be rectified.
How is it possible to rectify or undo the lapse if it pertains
to a vital piece of evidence?
A three-judge bench of this Court has observed in
Shivaji Sahabrao Bobade vs. State of Maharashtra (1973) 2
SCC 793 that such an omission does not ipso facto vitiate the
proceedings unless prejudice was established by the accused If
the accused succeeds in showing any prejudice it is open to the
appellate court to call upon the counsel for the accused to show
what explanation the accused has got regarding the
circumstances not put to him.
In Basavaraj Patil vs. State of Karnataka (2000) 8 SCC
740 a three-judge bench has followed the aforesaid observation
and stated thus:
The above approach shows that some
dilution of the rigour of the provision can be
made even in the light of a contention raised
by the accused that non-questioning him on
a vital circumstance by the trial court has
caused prejudice to him. The explanation
offered by the counsel of the accused at the
appellate stage was held to be a sufficient
substitute for the answers given by the
accused himself.
If such objection was not raised at the appellate stage the
revisional court should not normally bother about it. At any
rate, the omission to put the question concerning evidence
which is purely of a formal nature, is too insufficient for holding
that the proceedings were vitiated. The evidence sought to be
advanced through the affidavits in this case is, no doubt, only
of a formal nature.
For aforesaid reasons we allow this appeal and set aside
the impugned judgment of the High Court. We remit the
revision filed by the respondent before the High Court to be
disposed of afresh after affording a reasonable opportunity to
both sides for hearing.
The appeal is disposed of accordingly.
J
[ K.T. Thomas ]
J
[ S.N. Variava ]
September 28, 2001.