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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

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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

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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

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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.