Memory card produced by accused during cross examination of witness can be exhibited

 Trial court when confronted with said position was required to take the memory cards and CD and also to mark as exhibit tentatively so as to avoid hampering of progress of the trial. Hon'ble Supreme Court in me judgment rendered in the case of Bipin Shantilal Panchal v. State of Gujarat & Anr., MANU/SC/1529/2001 : 2001 (2) Supreme 65 : (AIR 2001 SC 1158, paras 12 to 15), has ruled that whenever an objection is raised during evidence taking stage regarding 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. It shall be advantageous to quote paras 13 to 16 of the said judgment:

"13. 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 court, 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 recast or re-moulded to give way for better substitutes which would help acceleration of trial proceedings.

14. 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.)

(Emphasis supplied)

15. 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 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.

16. 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.

(Emphasis added)

7. The trial court should have allowed to play the Laptop so as to contradict the witness with his earlier statement in order to enable him to admit or deny the same. It along with exhibit would remain tentative.

8. At the stage of cross-examination for contradicting PW (2), the defence should have been allowed to play the Laptop and even prayer for placing on record the memory cards and CD should have been granted which would remain subject to objection and a necessary note to that extent should have been recorded, as is permissible in view of the law laid down by the Hon'ble Supreme Court in Bipin Shantilal Panchal's case (MANU/SC/1529/2001 : AIR 2001 SC 1158), as referred above.

IN THE HIGH COURT OF JAMMU AND KASHMIR

561-A No. 72 of 2015

Decided On: 24.05.2016

 Sultan Mir and Ors. Vs. State of J. & K.

Hon'ble Judges/Coram:

Mohammad Yaqoob Mir, J.

Citation: AIR 2017 J & K 9