Law Web: When court can not compel accused to admit documents of complainant U/S 294 of CRPC?

The question that arises for consideration is whether, in the

facts, the respondent No.1 can be compelled to admit Annexure `C’ i.e. transcript of the alleged speech, by taking recourse to the provisions of the Evidence Act. The answer is `No’. The scope and import of Section 294 Cr.P.C is very clear i.e. to shorten the prosecution evidence and to ensure that certain documents when admitted by the accused, need not be proved by the prosecution. The legislative intent was not to bind the accused persons or compel them to admit or deny the genuineness of the documents produced by the prosecution. It is well settled that if an accused is compelled to deny or admit a document, it would be contrary to the constitutional mandate, inasmuch as, it would violate Article 20(3) of the

Constitution of India. In the case of State of Maharashtra vs. Ajay

Dayaram Gopnarayan (Supra), this Court in para 28 has observed as

under:

“…. The intention of the Legislature was not to bind the

accused persons or force him to admit or deny the

genuineness of the documents produced by the prosecution

that is why the court would not be justified in passing the

order directing accused to admit or deny the documents,

obviously since it would violate Article 20(3) of the

Constitution of India.”

Similarly, in Niwas Keshav Raut (Supra), this Court has, in

para 11 observed as under :

“…. Then it is not necessary for the accused, who is called

upon to admit or deny the document, to choose either of

these options and he may simply keep silence in respect of

the document which may as well be an expression of his

fundamental right under Article 20(3) of the Constitution of

India which says that no person accused of any offence shall

be compelled to be witness against himself. In case the

accused chooses to deny the document or just remain silent

in the regard, the document cannot be admitted in evidence

and it would be required to be proved in accordance with

law having regard to the right of the accused under Article

20(3) of the Constitution of India.”

13 Thus, it is clearly evident that an accused cannot be compelled

to admit/deny any document. The right of an accused to remain silent flows

from the Article 20(3) of the Constitution of India and is sacrosanct in a

criminal trial. No Court can compel or direct an accused to admit/deny any

document. It is also not the intent of the legislature under Section 294

Cr.P.C.

14 As noted above, the CD is a document of the petitioner relied

upon by him in the complaint and is also annexed to the list of documents.

Merely because a document of the complainant (petitioner) is annexed to

the petition filed by the respondent No. 1, would not make such a document

a `public document’, obtained from whichever source, thus giving a

complete go-by to the complainant (petitioner) from proving the same in

accordance with law. As noted earlier, prosecution/complainant has to

stand on its own feet and prove its case on its own steam.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL WRIT PETITION NO.376 OF 2019

Rajesh Mahadev Kunte, Vs Rahul Rajeev Gandhi,

CORAM : REVATI MOHITE DERE, J.

PRONOUNCED ON : 20 th SEPTEMBER 2021

1 Heard learned counsel for the parties.

2 By this petition, the petitioner has impugned the order dated

10th September 2018 passed by the learned Judicial Magistrate First Class,

Bhiwandi, Mumbai, below Exhibit 61 in Summary Criminal Case No.

2425/2014, by which the learned Judge rejected the petitioner’s (original

complainant’s) application seeking to exhibit the transcript copy of the

respondent No. 1’s speech under Section 294 of the Code of Criminal

Procedure (`Cr.P.C’).

3 Learned counsel for the petitioner (original complainant) states

that pursuant to the criminal complaint instituted by the petitioner, in the

Court of the learned Judicial Magistrate First Class, Bhiwandi, Mumbai,

process was issued as against the respondent No. 1. He submits that the

petitioner had filed the said criminal complaint relying on a CD containing

the speech of respondent No. 1, which, according to the petitioner, was

defamatory. Learned counsel for the petitioner submits that pursuant to the

order issuing process as against the respondent No. 1, the respondent No. 1

preferred a writ petition in this Court and sought quashing of the said

criminal complaint instituted against him. He submits that to the said writ

petition i.e. Writ Petition No. 4960/2014, the respondent No. 1 annexed a

transcript copy of the speech (taken from the CD annexed to the criminal

complaint). Learned counsel submits that the said writ petition was

dismissed by this Court and that the said order was confirmed by the Apex

Court. Learned counsel for the petitioner submits that thereafter, the

petitioner filed an application in this Court and sought certified copy of the

writ petition as well as the annexures annexed thereto and on receipt of the

said certified copy of the writ petition and annexures thereto, filed an

application before the trial Court under Section 294 Cr.P.C, with a prayer

for exhibiting the said writ petition and the annexures thereto. According to

the learned counsel for the petitioner, the respondent No. 1 admitted the

writ petition and not the annexures, since the annexures were the documents

of the complainant. Learned counsel relied on the verification statement of

the respondent No. 1 in the writ petition at page 31, signed by the

respondent No. 1, affirming the contents of paragraph Nos. 1 to 10 as true

and correct. He submits that the affidavit in support of the petition was

affirmed before a Notary Public and is a part of the certified copy supplied

by the Registry of the High Court and as such, the writ petition alongwith

its annexures, can be read in evidence with the aid of Sections 76, 77 and

63 of the Evidence Act. Learned counsel submits that the High Court

proceedings being judicial proceedings, records thereof are public

documents within the meaning of Section 74 of the Evidence Act and that certified copies of such public documents issued under the relevant High Court (Appellate Side) Rules, can be produced in proof of the contents ofthe public documents under Sections 76 and 77 of the Evidence Act. He submits that the writ petition in question was part of the judicial proceedings and annexures thereto were relied upon by the respondent No. 1, whilst arguing his case, seeking quashing of the proceeding pending before the trial Court and as such, the petition and the annexures thereto, were intended to be read and perused by the High Court, at the time of hearing of the said petition. According to the learned counsel, the writ

petition alongwith its annexures form a consolidated pleading, both on facts

and law and that the same cannot be separated or segregated when

presented in judicial proceedings under Section 294 Cr.P.C. He further

submits that the writ petition contains the pleadings based on the annexures

to the writ petition and therefore, is an integral part of the “document” and

that it also contains the transcript of the speech and that the same has been

admitted by the respondent No. 1 even before the Apex Court. According

to the learned counsel for the petitioner, the certified copies of the record

issued duly by the Registry under Chapter XIII of the High Court

(Appellate Side) Rules, are therefore, admissible in evidence, in relation to

the contents thereof, as mandated by Section 76 and as such, can be

tendered as evidence under Section 77 of the Evidence Act. Learned

counsel submits that the learned Judge erred in not considering that the

certified copy of the writ petition filed by the respondent No. 1 in this Court

alongwith its annexures was one composite “public document” and as such,

ought to have exhibited the entire writ petition alongwith its annexures

under Section 294 Cr.P.C. Learned counsel relied on the judgments in the

cases of Md. Akbar and Anr. v. State of A. P.1, J. Shiva Shankar v. Deputy

Superintendent of Police and Ors.2 and K. K. Manchanda & Anr. v. SD

Technical Services P. Ltd.3.

4 Learned counsel for the respondent No. 1 opposed the petition.

Learned counsel for the respondent No. 1 has also tendered written

submissions on behalf of the respondent No. 1, which were taken on record

during the course of hearing, on 11th August 2021. According to the learned

counsel for the respondent No. 1, it is a cardinal principle of criminal

jurisprudence that the prosecution must stand on its own legs in a criminal

trial, and that the said principle, cannot be given a go-by. Learned

counsel for the respondent No. 1 submits that the transcript of the contents

of the `CD’, annexed by the petitioner (original complainant) to his

complaint before the trial Court, was annexed to the writ petition by the

respondent No. 1, as the respondent No. 1 had challenged the order issuing

1 2002 Cri.L.J. 3167

2 2002 Cri.L.J. 3168

3 RA 320/2008 in CM (M) 1205/2007 dated 1/7/2009

summons to him. Learned counsel for the respondent No. 1 submits that

the CD of the speech made by the respondent No. 1 was annexed by the

petitioner (original complainant) himself, to the criminal complaint, as one

of its annexures, pursuant to which, the transcript of the said CD was

annexed by the respondent No. 1 to his writ petition, which was filed for

quashing of the order issuing process. He submits that since the CD is a

document relied upon by the petitioner (original complainant), the

transcript/translation of the said CD made by the respondent No. 1, will

have to be proved by the petitioner during trial, in accordance with law. He

further submits that the respondent No. 1 cannot be compelled to admit or

deny any document and that any such direction to an accused, to do so,

would clearly violate Article 20(3) of the Constitution of India. Learned

counsel in this regard relied on the judgment of the Division Bench of this

Court in the case of State of Maharashtra v. Ajay Dayaram Gopnarayan

& Ors.4 and the case of Niwas Keshav Raut v. State of Maharashtra5, in

support of his submission. He submits that the petitioner/original

complainant cannot be absolved of his duty to prove his case as against the

respondent No.1/accused. Learned counsel for the respondent No. 1

vehemently denies that the writ petition alongwith its annexures, together

forms a composite “public document”. He further submits that infact, it

4 2014 (2) Bom. (Cri.) 40

5 2015 (4) Bom. C.R. (Cri.) 397

was not permissible for the learned Judge to recall or review his earlier

order, inasmuch as, when the petitioner filed an application (Exhibit 58)

under Section 294 Cr.P.C, the learned Magistrate vide its order dated 12th

June 2018, had only exhibited the writ petition (without annexures) and the

affidavit in support of the writ petition and as such, the learned Judge could

not have entertained the second application (Exhibit 61) praying that the

transcript annexed to the writ petition, be exhibited. He submits that there

is no merit in the petition and that no grounds are made out for interfering

with the impugned order. Learned counsel relied on the judgments in the

case of Om Prakash Berlia & Anr. v. Unit Trust of India & Ors.6, Anvar

P. V. v. P. K. Basheer & Ors.7, Geeta Marine Services Pvt. Ltd. & Anr. v.

State & Anr.8 and Nilesh Dinkar Paradkar v. State of Maharashtra9 in

support of his submissions.

5 Perused the papers. A few facts as are necessary to decide the

petition are set-out hereinunder :

It is the petitioner’s (original complainant’s) case that on 6th

March 2014, the respondent No. 1, in his speech, accused the members of

6 AIR 1983 Bom. 1

7 (2015) 1 SCC (Cri) 24

8 AIR 2009 Cri. L. J. 910

9 2011 (3) JCC 1972 (SC)

the Rashtriya Swayamsevak Sangh (`RSS’) as being the assassins of Late

Shri. M. K. Gandhi. Pursuant thereto, the petitioner, on 18th March 2014,

filed a criminal complaint in the Court of the learned Judicial Magistrate

First Class at Bhiwandi, as against the respondent No. 1 for the alleged

offence punishable under Section 500 of the Indian Penal Code. To the

said complaint, the petitioner set-out the list of witnesses to be examined

and the list of documents sought to be relied on. In the list of documents,

two documents were set-out (i) CD containing speech of the respondent No.

1 telecast live from Zee 24 Taas (Marathi News Channel), and (ii) news

readers. The learned Magistrate vide order dated 11th July 2014 issued

process as against the respondent No.1. The respondent No. 1 challenged

the said order of issue process in this Court, by filing Writ Petition No.

4960/2014 and sought quashing of the order issuing process/criminal

complaint instituted against him. To the said petition, the respondent No. 1

annexed the transcript copy of the speech from the CD relied upon by the

petitioner. The said petition was dismissed by this Court vide order dated

10th March 2015. Being aggrieved by the said order dismissing the writ

petition, the respondent No.1 challenged the same in the Apex Court. The

said SLP (Cri.) No. 3749/2015 was dismissed by the Apex Court in 2015.

6 On 12th June 2018, the petitioner filed an application (Exhibit

58) under Section 294 of Cr.P.C, in the trial Court and called upon the

respondent No. 1 to admit or deny the genuineness and correctness of the

certified copy of the writ petition (Writ Petition No.4960/2014) alongwith

the annexures and affidavit thereto filed by the respondent No.1 in the

Bombay High Court. The said application was filed, as according to the

petitioner, the respondent No. 1 had not disputed the making of the speech

and had infact, annexed the transcript of the speech to the petition. The trial

Court called for the say of the respondent No. 1 on the said application.

The respondent No. 1 gave the following say on the said application :

“The defence does not dispute the genuineness of the

documents i.e. Cri. Writ Petition No. 4960/2014, except the

Annexure which are document of the complainant”.

Thereafter, on the same day i.e. 12th June 2018, the learned

Judge, after hearing the parties, passed the following order :

“ORDER

Perused the application and say. Accused

admitting only this document such as copy of Writ Petition

No. 4960/2014 and Affidavit. Accordingly, this document is

exhibited.”

7 On the very same day i.e. 12th June 2018, after the aforesaid

order was passed, the petitioner filed another application (Exhibit 61) and

prayed that the document at Exhibit `C’ (transcript of speech) of the writ

petition, be exhibited, as the same was annexed by the petitioner (original

complainant) to the petition and is not the complainant’s (petitioner’s)

document. The said application was resisted by the learned counsel for the

respondent No. 1. In its say to the said application (Exhibit 61), it was

stated that Exhibit `C’ is a transcript of the alleged speech of the respondent

No. 1, on the basis of which, the complaint was filed by the complainant

(petitioner); that the speech is recorded on a CD and filed by the

complainant/police alongwith the police report and hence, undisputedly, is a

document of the complainant (petitioner) and hence, the

transcript/translation of such document would also be a document of the

complainant and hence the said document is specifically denied; that the

annexures to the writ petition particularly annexure `C’ is a document filed

for the limited purpose of the writ petition (filed for quashing) and as such,

cannot be construed as admission on behalf of the respondent No.1; that the

said transcript produced at Exhibit `C’ (transcript of the alleged speech) on

the basis of the CD being the document of the complainant (petitioner), it

was for the petitioner to prove the same in Court during trial; and that the

respondent No. 1 cannot be compelled to admit any document, even if such

document was part of some other ancillary proceedings filed by the

respondent No. 1 arising out of the same matter or a different matter.

Accordingly, the advocate for the respondent No. 1 prayed for rejection of

the said application.

8 The learned Judicial Magistrate First Class, Bhiwandi, vide

order dated 10th September 2018, rejected the petitioner’s application

(Exhibit 61), after observing that the said application was not tenable.

Learned Judge further observed that Exhibit `C’ of the writ petition filed by

the respondent No. 1 in High Court, is a transcript of the alleged speech of

respondent No.1-accused, which is recorded on a compact disc (CD) on the

basis of which, the complaint was filed by the petitioner (complainant) and

hence, it is the complainant’s document. It is further observed that the

Annexure `C’ is a document which was annexed to the writ petition for the

limited purpose, i.e. for seeking quashing of the case and as such, cannot be

construed as an admission on behalf of the respondent No.1-accused; that

these being documents of the complainant, the same is required to be

proved during trial and as such it is not necessary to obtain admission or

denial of the said document under sub-section (i) of Section 294 Cr.P.C. It

was further observed that the endorsement of admission of denial made by

the respondent No. 1-accused on the document filed by the petitioner was

sufficient compliance of Section 294 Cr.P.C.

9 Being aggrieved by the said order dated 10th September 2018,

the petitioner has filed the aforesaid petition.

10 The submission of the learned counsel for the petitioner that

Annexure C to the writ petition filed by the respondent No. 1 in this Court

ought to have been exhibited under Section 294 Cr.PC, as it was relied upon

by the respondent No.1, is wholly misconceived. It is a settled law that the

prosecution must stand on its own feet in order to prove its case.

Admittedly, the petitioner (original complainant) relied on certain

documents including a CD containing the speech of respondent No. 1 in

support of his complaint. It appears that when the respondent No. 1 filed a

writ petition in this Court (Criminal Writ Petition No. 4960/2014), he

annexed a transcript copy of the speech from the CD. Merely because the

said transcript was annexed as Annexure `C’ to the petition, does not mean

that the said document has been admitted by the respondent No.1, thereby

absolving the petitioner from proving the same. It appears that the

transcript of the said CD was annexed as annexure C for seeking quashing

of the case, to show that no case was made out. The said CD is a document

of the petitioner, which will have to be proved by the petitioner during the

course of the trial in accordance with the law. Merely because the

petitioner has obtained a certified copy of the petition alongwith the

annexures, does not mean that the petitioner (complainant) can compel the

respondent No. 1 to admit/deny Annexure `C’ to the said petition.

11 Learned counsel for the respondent No. 1 submitted that the

Practice Note issued by this Court required that if any document is in a

language other than English, typed copy of the translation in English of the

contents must be produced alongwith the original document and that in the

present case, the contents were not only on a CD but also were in Hindi,

which necessitated the respondent No. 1 to produce a translated copy in

English. Whereas, according to the learned counsel for the petitioner, since

the respondent No. 1 had relied on the transcript, the said transcript

Annexure `C’ to the writ petition was the respondent No.1’s document.

12 The question that arises for consideration is whether, in the