Sureshkumar v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS FRIDAY, THE 17[TH] DAY OF MARCH 2023 / 26TH PHALGUNA, 1944 CRL.MC NO. 1754 OF 2023** **AGAINST THE ORDER/JUDGMENT IN SC 341/2021 OF DISTRICT COURT & SESSIONS COURT, PALAKKAD** ## **PETITIONER/S:** SURESHKUMAR AGED 46 YEARS S/O SHANMUGHAN PILLAI, KONKALATH KALAM, CHERUTHAPIILLOOR, THENKURISSI P.0,, PALAKKAD, PIN - 678671 BY ADV RAJIT ## **RESPONDENT/S:** STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 BY ADV PUBLIC PROSECUTOR ## **OTHER PRESENT:** PP SMT.SREEJA V THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 17.03.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.M.C.No. 1754 of 2023 2 **BECHU KURIAN THOMAS, J. …............................................ Crl.M.(C) No. 1754 of 2023 …............................................................ Dated this the 17[th] day of March, 2023** ## **ORDER** The petitioner is the 1[st] accused in SC No.341/2021 of First Additional Sessions Court, Palakkad. The offences alleged against the petitioner includes that under Section 302 of the Indian Penal Code, 1860, also. Petitioner is the maternal uncle of the victims' wife and it is alleged that the accused indulged in honour killing since his niece married a person of lower caste. 2. While the trial in the case was going on, a print out taken from a compact disc allegedly containing the call detail records (CDR) of the mobile phone belonging to the deceased using the service provider 'Airtel' was sought to be marked in evidence. Since it was noticed that the CDR varied significantly from the record of CDRs produced by the prosecution, the court by the impugned order, as written in the deposition of PW38, observed that the compact disc produced cannot be used by the learned counsel for accused Nos.1 and 2 for any purpose since its veracity is doubtful. Crl.M.C.No. 1754 of 2023 3 3. On the basis of the said order, the accused is alleged to be precluded from putting any questions or from relying upon the call details records from the CD, either during trial or thereafter. According to Sri. Rajit, the learned counsel for the petitioner, the order of the learned Sessions Judge causes great prejudice, since the call detail records in the possession of the petitioner and obtained from the prosecution at the time of committal is material for his defence. 4. Smt. Sreeja V., the learned Public Prosecutor opposed the contentions and submitted that the documents handed over by the prosecution to the petitioner did not contain any compact disc containing the call detail records now sought to be marked of the service provider 'Airtel' and therefore, the said details cannot be utilised. It was also submitted that the order of the learned Sessions Judge recorded during evidence stage ought not to be interfered with as the authenticity of the CD itself is doubt full. 5. I have considered the submissions advanced. 6. In the decision in **Bipin Shantilal Panchal v. State of Gujarat [2001(3) SCC 1]** , the Supreme Court had Crl.M.C.No. 1754 of 2023 4 considered the situation where objections are raised regarding admissibility of new material during the evidence stage. After criticizing the practice of passing orders on the admissibility of material produced during the evidence stage, before proceeding further, the court observed that it would be ideal that objections are recorded and the objected documents are marked tentatively as an exhibit but subject to the objections, which shall be decided at the final stage in the judgment. For a better comprehension the following observations from the aforenoted judgment are extracted here under; _''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 recanvassed, 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_ Crl.M.C.No. 1754 of 2023 5 _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.)_ _15. The above procedure, if followed, will have two advantages. First is that the time in the trial court,_ Crl.M.C.No. 1754 of 2023 6 _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 recanvassed 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.''_ 7. In the instant case, during the course of evidence, the learned counsel for the petitioner attempted to question the witness on the basis of call detail records in a CD allegedly handed over to him by the prosecution. The learned Sessions Judge doubted the veracity of the details in the CD and the CD itself and on that basis, precluded the accused from utilising the CD or its contents for any purpose whatsoever. A restriction on using the document even a doubtful one during the stage of evidence can lead to prejudice. A decision on the veracity of the CD ought to be entered into at some point of time. Hence, denying the evidence to be adduced on the basis of a doubt is Crl.M.C.No. 1754 of 2023 7 prejudicial to the accused especially when the doubt has not crystallized into a certainty. 8. Therefore, as observed in the judgment in **Bipin Shantilal Panchal** (supra), it is ideal that the learned Sessions Judge permits the call detail records from the CD to be marked in evidence subject to the objection and decide on the objections at the final stage or in the judgment. In view of the above, the proof of the contents of the CD and its admissibility are left open to be decided by the learned Sessions Judge in the final judgment and the restriction in the impugned order written in the deposition of PW38 in SC No.341/2021 on the files of First Additional Sessions Court, Palakkad is set aside. The Crl.M.C is allowed to the above extent. **Sd/BECHU KURIAN THOMAS JUDGE** Dxy Crl.M.C.No. 1754 of 2023 8 ## **APPENDIX OF CRL.MC 1754/2023** |PETITIONER|ANNEXURES| |---|---| |Annexure 1|A TRUE COPY OF THE PROCEEDINGS CP14/2021| ||ON THE FILES OF JFCM-I, PALAKKAD| |Annexure 2|A CERTIFIED COPY OF THE CERTIFIED COPY| ||OF THE DEPOSITION OF PW38 RECORDED ON| ||14.02.2023, WHICH CONTAINS THE IMPUGNED| ||ORDER PASSED BY THE TRIAL COURT, IST| ||ADDITIONAL SESSIONS JUDGE PALAKKAD| |Annexure 3|A TRUE COPY OF THE STATUS REPORT OF E| ||COURT IN S.C.NO.341/2021 OF DISTRICT| ||COURT PALAKKAD| |Annexure 4|A TRUE COPY OF THE MEMO DATED 22.02.2023| ||OF THE PROSECUTION WHICH IS HANDED OVER| ||TO THE ACCUSED| |Annexure 5|A TRUE COPY OF THE CDR PRODUCED BY THE| ||PROSECUTION IN RESPECT OF THE 1ST| ||ACCUSED| |Annexure 6|A TRUE COPY OF THE PRINTOUT OF THE CALL| ||DETAIL RECORDS TAKEN FROM THE CD| ||SUPPLIED TO THE ACCUSED|