1. The witness has deposed that the conversation recorded in the cassette took place in his presence. He has identified the voices on the cassette. He has also deposed about the making of the transcript and the translations thereof. Mr. Sampat has objected to the admissibility of the cassette, the transcripts and the translations thereof on various grounds, including those stated in his note.
2. Evidence in this matter commenced on 28-11-2001 before Smt. K.K Baam, J. (As her Ladyship then was). The recording of evidence was not complete. It continued before J.A Patil, J. initially on 26-2-2003. It continued on two days thereafter. The last date on which the evidence was recorded was 31-3-2003. The matter, after the change in assignments is now before me.
3. It is not necessary to rule on the admissibility of this evidence at this stage. Considering the nature of the evidence and the objections taken thereto, this is a fit case for exercising my discretion and admitting the same provisionally and subject to the right of the plaintiffs and defendant No. 2 to pursue their objections at the final stage of the hearing of this proceeding. Further, the plaintiff and defendant No. 2 shall be entitled to cross-examine the witness in respect of this evidence without prejudice to their right to pursue their objections. It is clarified that it will not be open to defendant No. 1 to contend that by virtue of having cross-examined the witness on this evidence, the plaintiffs and defendant No. 2 are barred from raising their objections.
4. I have adopted this course in view of the nature of the evidence, the objections thereto and based on the two recent judgments of the Supreme Court. In Bipin Shantilal Panchal v. State of Gujarat, AIR 2001 SC 1158 a three Judge Bench of the Supreme Court held as under:
12. “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.”
13. “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).”
14. 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 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.”
15. “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.”
5. This view was reiterated by the Supreme Court in State v. Navjot Sandhu alias Afshan Guru, (2003) 6 SCC 641.
6. These judgments were rendered in matters pertaining to Criminal proceedings. However, the above observations of the Supreme Court do not restrict the ratio to proceedings in criminal cases. In my view, the ratio of the aforesaid judgments apply equally to civil cases.
7. In the circumstances, the Exhibits presently marked ‘X’, ‘XI’, ‘X2’ and ‘X3’ for identification are taken on record and marked Exhibits “D1/1”, “D1/2”, “D1/3” and “D1/4” tentatively and subject to the objections raised by Defendant No. 1 and Defendant No. 4 being decided at the last stage in the final judgment on the preliminary issue.
8. The plaintiffs and defendant No. 2 are at liberty to cross-examine the witnesses on these tapes and documents without prejudice to their objections. It will not be open to defendant No. 1 to contend that by cross-examining the witness they have given up their right to pursue the objections. Indeed, when documents are received in evidence in this manner, tentatively and subject to objections to be decided in the final judgment, this course must necessarily always follow even without it being so mentioned subject to the order itself indicating anything to the contrary.
Order accordingly.