High Court
Legal Reasoning
corrected-913held in paragraph nos. 19 and 20 as under :“19. Recourse to Section 294 of the Cr.P.C. canalso not be taken for a witness to claim that hecould directly produce additional documentsduring the course of trial or during the course ofrecording of his evidence. Section 294 of theCr.P.C. pertains to no formal proof of certaindocuments and it opens with the words "Whereany document is filed before any Court by theprosecution or the accused", therebydemonstrating that the said provision isapplicable only when a document is sought to beproduced either by the prosecution or theaccused and not any third party like a witness. Infact, in the judgment in the case of ShamsherSingh Verma Vs. State of Haryana (2016) 15SCC 485, the Hon'ble Supreme Court hasreferred to the object of Section 294 of Cr.P.C.,1973 and it has been held that same is foraccelerating the pace of trial, by avoiding wasteof time in recording unnecessary evidence. Thejudgment of this Court in the case of NiwasKeshav Raut Vs. The State of Maharashtra(supra) lays down that Section 294 of Cr.P.C.,1973 does not place any embargo upon theprosecution or the accused to file a document ata stage subsequent to filing of the charge-sheet.There can be no quarrel with the said6 of 10 corrected-913proposition. Yet, it cannot come to the aid of thewitness in the present case, who has soughtpermission of the Sessions Court to directlyproduce documents during the course of trialand at the time of recording his evidence. 20. A perusal of the impugned order shows thatthere is a reference made to Section 242 of theCr.P.C., 1973. A perusal of the said provisionwould show that it pertains to the power of theMagistrate to issue summons to any witness onthe application of the prosecution, directing suchwitness to produce any documents or thing. Inthis provision also, the words "on the applicationof the prosecution", have been used. Evenotherwise, Section 242 of the Cr.P.C., 1973 isfound in Chapter XIX pertaining to trial ofwarrant cases by the Magistrate. But, in thepresent case, the Court below is concerned witha sessions trial under Chapter XVIII of the Cr.P.C.Therefore, reference to Section 242 of the Cr.P.C.by the Court below is also misplaced.”10.However, in case in hand, the learned Special Courtpassed the impugned order dated 10.11.2023 below exhibit 103 &105 and permitted the prosecution for production of original birthcertificate and the victim’s extract of School Admission Register.The birth certificate issued under the Birth and Death Registration7 of 10 corrected-913Act, is a public document and it is admissible under Section 35 ofthe Evidence Act.11.It is not a case of the petitioners/accused that, thevictim’s date of birth recorded in the documents i.e. identity card,school bonafide certificate, extract of School admission Register,School progress card Aadhar Card and the date of birth recordedin the Birth Certificate issued under the Birth and DeathRegistration Act and the School Admission Extract are different.The Petitioners/Accused are already supplied charge-sheet withdocuments including identity card, bonafide certificate issued bythe victim’s school, Nirgam Utara (Extract of School AdmissionRegister of the victim), progress card and Unique Aadhar Card.Therefore, the petitioners/accused are very much aware aboutdate of birth of the victim. Since the prosecution wanted toproduce original victim’s birth certificate and original Extract ofSchool Admission Register of the victim in order to corroboratebirth certificate of the victim. Therefore, it cannot be said that thepetitioners accused not known about date of birth of the victim.The petitioners/accused have not denied about service of identitycard, school bonafide certificate, extract of school admissionregister, progress card Aadhar card of the victim. Therefore, no8 of 10 corrected-913prejudice would cause to the Petitioners, if the prosecutionpermitted to produce said documents. 12.Needless to say that, the prosecution examined theP.W.1 victim’s father at exhibit 82, who faced cross-examinationconducted on behalf of accused nos. 1 to 4. It is a matter of recordthat P.W. 1, the victim’s father, deposed that his daughter/victim(P.W. 2) was born on 07.08.2004, but he does not have the birthcertificate of the victim. The P. W. 2 Victim deposed at exhibit 100and stated that, she had taken admission in first standard in theschool at Vazirabad, Nanded but admitted at she is not havingbirth certificate. 13.Since, both the witness stated that they are not havingbirth certificate, therefore, the prosecution wanted to producevictim’s birth certificate. Therefore, merely because the trial Courtpermitted the prosecution to produce the victim’s birth certificateissued under the Birth and Death Registration Act, the petitioner’sdefence is not going to be washed out. Needless to say that ifdocuments are referred to in examination-in-chief to the witness,the petitioners/accused will have the right to cross-examine thesaid witnesses. In view of above discussion, impugned dated9 of 10 corrected-91310.11.2023 passed by the learned trial Court does not appearillegal bad in law and no grounds are set out to interfere with saidfindings. Therefore, petition is deserved to be dismissed.Accordingly, petitioner is dismissed. Rule is discharged. ( Y. G. KHOBRAGADE, J. )SPC-10 of 10
Arguments
corrected-913IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD913 CRIMINAL WRIT PETITION NO. 20 OF 20241.Suraj S/o. Deepak Wathore,Age. 24 years, Occu. Mason,2.Deepak S/o. Devba Wathore,Age. 46 years, Occu. Labour,3.Ashabai W/o. Deepak Wathore,Age. 40 years, Occu. Household,All R/o. Sarsam, Tq. Himayatnagar,Dist. Nanded.….PetitionersVersus1.The State of Maharashtra2.XYZ...RespondentsAdvocate for the Petitioners : Mr. Hande Avinash D.APP for Respondent No. 1 : Ms. Chaitali Chaudhari-KuttiAdvocate for Respondent No. 2 : Mr. Suraj R. Bagalh/f. Mr. Gadegaonkar Bharat N.CORAM :Y. G. KHOBRAGADE, J. Dated:05th March, 2025JUDGMENT :-1.Rule. Rule made returnable forthwith. With theconsent of both sides, heard finally at the stage of the admission. 2.By the present petition, under Article 227 of theConstitution of India read with Section 482 of the Code of Criminal1 of 10 corrected-913Procedure, the petitioners have challenged the order dated10.11.2023, passed by the learned Extra District Judge-1 andAssistant Sessions Judge, Nanded, below exhibit 103 and 105 inSpecial (POCSO) Case No. 62/2021, thereby permitting theprosecution to produce additional documents i.e. original birthcertificate issued by the competent authority to prove the age ofthe victim on the date of commission of offence.3.The learned counsel appearing for the petitionersvehemently canvassed that the petitioners are facing trial inSpecial (POCSO) Case No. 62/2021 for offences punishable underSections 363, 376(2) (N) read with Section 34 of the Indian PenalCode and Section 6 of the Protection of Children from SexualOffences Act (in short ‘POCSO’). After due investigation, the I. O.filed charge sheet against petitioners/accused. Thereafter, thecharge was framed on 27.12.2022 for the offences under Sections363, 376(2) (N) read with Section 34 of the Indian Penal Code andSection 6 of POCSO Act.4.During the course of trial, the prosecution examinedthe P.W.1 and P.W. 2. However, both the witnesses P.W.1 and P.W. 2have stated that, they do not have birth certificate of the victim(PW2). Both the witnesses undergone cross-examination.Thereafter, the prosecution has filed Exh. 103 and 105 applicationseeking permission to produce original birth certificate issued bythe Health Department N.W.C.M.C.,Nanded of the victim andNirgam Utara (Extract of School Admission Register) issued by theSchool of the victim to prove date of birth of the victim (PW2). Thepetitioners/accused filed their reply at exhibit 107 and resisted2 of 10 corrected-913both applications on the ground that, the prosecution has notproduced documents along with chargesheet under Section 173(8) of Cr.P.C., 1973. However, the prosecution wanted to refer bothdocuments first time to the witness in evidence.5.It is further canvassed on behalf of the petitionersthat, the provisions of Cr.P.C. do not provide for production ofdocuments after filing charge-sheet and after cross-examination ofthe witnesses are over. However, on 10.11.2023, the learned trialCourt passed the impugned order and permitted the prosecutionfor production of documents i.e. original birth certificate issued bythe Health Department N.W.C.M.C.,Nanded of the victim andNirgam Utara (Extract of School Admission Register) issued by theSchool of the victim to prove date of birth of the victim (PW2).Therefore, the impugned order is illegal and bad in law. Hence,prayed for quash and set aside.6.In support of this submissions, the learned counselappearing for the petitioners placed reliance on case ofBhagyashree Prashant Wasankar Versus State of Maharashtra, 2021ALL MR (Cri) 3030 : 2021 (6) Mh.L.J. (Cri.) 336, wherein, it isheld that, there is no procedure contemplated under CriminalProcedure for permitting the prosecution witness directly forproduction of documents in Sessions trial which were not part ofthe chargesheet filed before the Court and additional documentcould be produced by filing the procedure of further investigationas contemplated under Section 173(8) of Cr.P.C., and theprosecutor taking a call as to whether such documents need to beproduced in order to prove the charge against accused.3 of 10 corrected-9137.On the other hand, learned APP and Mr. B.N.Gadegaonkar, learned counsel appearing for the victim/respondentno. 2 submitted that, during course of investigation, theInvestigation Officer filed chargesheet against the accused personsfor the offences punishable under Sections 363, 376(2) (N) r/wSection 34 of the Indian Penal Code and Section 6 of the POCSOAct. The I. O. collected various documents and produced the samewith charge-sheet including identity card of the victim, bonafidecertificate issued by the school of the victim, Nirgam Utara (Extractof Admission of School Register of the victim), progress card andUnique Aadhar Card, which shows that, the victim was minor onthe date of commission of offence. However, the prosecutionwanted to produce original birth certificate of the victim issued bythe Health Department N.W.C.M.C.,Nanded and original copy ofextract of school register of the victim issued by her School. TheVictim’s date of birth shown in the school extracts as well as inidentity card, bonafide certificate issued by the victim’s school,Nirgam Utara (extract of admission of school register of thevictim), progress card and Unique Aadhar card is one and same.However, the birth certificate issued under the Birth and DeathRegistration Act was not available with the prosecution at the timeof filing of the charge-sheet. Therefore, in order to prove theVictim’s date of birth, the prosecution wanted to produce originalbirth certificate and Extract of School Admission Register.Therefore, by allowing the prosecution for production ofdocuments no prejudice would caused to the accused, hence,prayed for dismissal of the petition.8.Section 294 of Cr.P.C., provides as under :4 of 10 corrected-913“294. No formal proof of certain documents.(1) Where any document is filed before anyCourt by the prosecution or the accused, theparticulars of every such document shall beincluded in a list and the prosecution or theaccused, as the case may be, or the pleader forthe prosecution or the accused, if any, shall becalled upon to admit or deny the genuinenessof each such document.(2) The list of documents shall be in such formas may be prescribed by the State Government.(3) Where the genuineness of any document isnot disputed, such document may be read inevidence in any inquiry, trial or otherproceeding under this Code without proof ofthe signature of the person to whom it purportsto be signed :Provided that the Court may, inits discretion, require such signature to beproved.”9.In Niwas Keshav Raut Versus The State ofMaharashtra, (2015) SCC Online Bom 4214, the co-ordinate benchof this Court considered the provision of Section 294 of Cr.P.C., andpermitted the prosecution for production of documents. No doubt,the learned counsel appearing for the petitioners though relied oncase of Bhagyashree Prashant Wasankar (supra), wherein thewitness was tried to produce additional document directly duringthe course of trial. Therefore, the co-ordinate bench of this Court5 of 10