of Punjab Vs. Naib Din  Insc 514 (28 September 2001)
Thomas & S.N. Variava Thomas, J.
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.
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.
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.
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.
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:
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.
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:
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
Patil vs. State of Karnataka (2000) 8 SCC 740 a three-judge bench has followed
the aforesaid observation and stated thus:
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.
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.
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.
appeal is disposed of accordingly.
K.T. Thomas ] J [ S.N. Variava ] September 28, 2001.