Criminal Misc. No. M-9077 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No. M-9077 of 2008 Date of decision:- May 30, 2008 S.P.S. Rathore ...Petitioner. Versus C.B.I. SIC 1 New Delhi and another ...Respondents. CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Ms. Abha Rathore, Advocate for the petitioner. Mr. Rajan Gupta, Advocate for C.B.I.- respondent no.1. Mr. Ashok Khichi, Advocate for respondent no.2. RAJESH BINDAL J. The petitioner has approached this Court with the following prayers: “(i) praying for quashing/modifying the portion of the order in para 7 and 10, dated 17.12.2007, passed by the learned Special Judicial Magistrate, C.B.I., Patiala, wherein it has been held that objections taken by the defence/accused during recording of prosecution evidence in the trial “will be decided at the last stage in the final judgment”, And direct the trial Court to decide the objections first before the final arguments. (ii) The document D 24 and D 5 may be ordered to be exhibited by the Trial Court.” Criminal Misc. No. M-9077 of 2008 2 Briefly the facts, as stated in the petition, are that the petitioner is facing trial before the Special Judicial Magistrate, CBI at Patiala under Section 354 IPC. The trial is at the stage of recording of defence evidence. The statement of the petitioner under Section 313 Cr.P.C. has already been recorded. The present petition is filed challenging the order passed by learned court below in an application filed by the petitioner for deciding the objections raised during prosecution evidence, permitting certain documents to be exhibited to which the petitioner had raised objection. At that time it was recorded that the objection shall be decided at the time of final judgment. The application was contested by the respondent. The learned court below vide order dated 17.12.2007 dismissed the same relying upon judgment of Hon’ble the Supreme Court in Bipin Shantilal Panchal versus State of Gujarat and another, 2001 Criminal Law Journal 1254. Learned counsel for the petitioner submitted that the petitioner during the course of trial had raised objections regarding certain documents to be exhibited and also certain oral evidence led by the prosecution. However, the same were not decided at the same time and were kept open to be considered and decided at the final stage. This procedure has prejudiced the case of the petitioner as he is unable to know the case set up by the prosecution. In case certain evidence is not to be considered, the petitioner need not rebut the same in his evidence. Similar is the argument with regard to the evidence led by the petitioner in defence. There also, the objections Criminal Misc. No. M-9077 of 2008 3 raised by the prosecution have been kept open to be considered at the time of final judgment. Qua that the submission is that in case the objection is decided immediately the petitioner will come to know about the fate of the evidence led by him and in case need be he can lead further evidence. It is further submitted that the judgment of Hon’ble the Supreme Court in case Bipin Shantilal Panchal (supra) cannot be relied upon as that pertained to a sessions trial whereas in the present case it is a magisterial trial. Still further the submission is that at on earlier occasion the court below had decided the objections raised by the petitioner at the same stage and the order passed therein was upheld by this Court, in a challenge by the complainant, vide order dated 11.8.2005 in Criminal Misc. No. 48503-M of 2004. Heard learned counsel for the parties and perused the record. In my opinion, the issue sought to be raised by the petitioner is squarely covered by the judgment of Hon’ble the Supreme Court in Bipin Shantilal Panchal’s case (supra), wherein while considering the need to streamline the procedural trammels and vocational constraints with a view to speed up the criminal trial Hon'ble the Supreme Court opined as under: “ This is yet another opportunity to inform the trial Courts that despite the procedural trammels and vocational constraints we have reached a stage when no effort shall be spared to speed up trials in the Criminal Courts. It causes anguish to us that in spite of the exhortations made by this Court and a few High Courts, time and again, some of the trial Courts exhibits stark Criminal Misc. No. M-9077 of 2008 4 insensitivity to the need for swift action, even in cases where the accused are languishing in prisons for long years as under-trials only on account of the slackness. If not inertia, in accelerating the process during trial stage. x x x x x 12. It is an archaic practice that during the evidence collecting stage, whenever any objection is raised regarding admissibility of any material in evidence the Court does not proceed further without passing Order on such objection. But the fall out of the above practice is this: Suppose the trial Court, in a case, upholds a particular objection and excludes the material from being admitted in evidence and then proceeds with the trial and disposes of the case finally. If the appellate or revisional Courts, when the same question is re-canvassed, could take a different view on the admissibility of that material in such cases the appellate Court would be deprived of the benefit of that evidence, because that was not put on record by the trial Court. In such a situation the higher Court may have to send the case back to the trial Court for recording that evidence and then to dispose of the case afresh. Why should the trial prolong like that unnecessarily on account of practices created by ourselves. Such practices, when realised through the course of long period to be hindrances which impede steady and swift progress of trial proceedings, must be Criminal Misc. No. M-9077 of 2008 5 recast or re-moulded to give way for better substitutes which would help acceleration of trial proceedings. 13. When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence taking stage regarding the admissibility of any material or item of oral evidence the trial Court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the Court finds at the final stage that the objection so raised is sustainable the Judge or Magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. However, we make it clear that if the objection relates to deficiency of stamp duty of a document the Court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed. 14. The above procedure, if followed, will have two advantages. First is that the time in the trial Court, during evidence taking stage, would not be wasted on account of raising such objections and the Court can continue to examine the witnesses. The witnesses need not wait for long hours, if not days. Second is that the superior Court, when the same objection is re-canvassed and Criminal Misc. No. M-9077 of 2008 6 reconsidered in appeal or revision against the final judgment of the trial Court, can determine the correctness of the view taken by the trial Court regarding that objection, without bothering to remit the case to the trial Court again for fresh disposal. We may also point out that this measure would not cause any prejudice to the parties to the litigation and would not add to their misery or expenses. 15. We, therefore, make the above as a procedure to be followed by the trial Courts whenever an objection is raised regarding the admissibility of any material or any item of oral evidence.” A perusal of the judgment referred to above clearly shows that the procedure was devised with a view to save time in the trial, otherwise lot of time would be wasted in deciding the objections at different stages of evidence by both the parties. The same will amount to trial within trial as any of the party can misuse the process by filing frivolous objections at every stage, the decision whereof may take time. Another reason given by Hon’ble the Supreme Court is that in case while upholding the objection the document or evidence is not taken on record and ultimately the higher Court considers the objection to be frivolous, the higher Court will not be able to take the benefit of the evidence because the material is not put on record by the trial Court. In that eventuality the case may have to be sent back to the trial Court resulting in unnecessary delay. The apprehension of learned counsel for the petitioner that in case the objection raised Criminal Misc. No. M-9077 of 2008 7 against admission of a document or other evidence is not decided at the same stage, the party may be prejudiced is merely to be noticed and rejected. This is for the simple reason that if the party raising objection is so confident about the admissibility or inadmissibility of the document it is ultimately he who will get the advantage thereof as the material so placed on record by the other party will finally be not read into evidence in case the objection raised is upheld. Similar is the position with regard to the documents produced by a petitioner in his evidence, which is objected to by the other side. The submission of learned counsel for the petitioner that in case the objection is decided immediately, the petitioner will come to know about the fate of evidence led by him and in case need be some other evidence can be led to substantiate the claim, however, such a procedure cannot be adopted. The court is not to opine at every stage of the trial as to whether the evidence led by a party is admissible or sufficient or not. It is only to be appreciated at the time of final determination. Parties to the litigation are free to lead any evidence they wish to lead. The effect thereof is to be considered at the final stage. For the reasons mentioned above, I do not find any merit in the present petition. Dismissed. MAY 30, 2008 (RAJESH BINDAL) ritu-II JUDGE