- Bookmark
- Share
- CaseIQ
State Of Punjab v. Naib Din .
Factual and Procedural Background
The respondent was prosecuted before the Judicial Magistrate First Class, Ludhiana, for possessing 4.5 kg of opium on 11 October 1984, an offence under Section 9 of the Opium Act. According to the police, the respondent attempted to flee when officers on patrol approached him near a railway crossing; upon search, the contraband was recovered. A 10-gram sample was sealed and sent to the Chemical Examiner, whose report (Exhibit PD) confirmed the substance was opium.
During trial, two head constables gave oral evidence. Two other police officials—Satpal Singh and Sohan Lal—filed affidavits describing the purely formal steps of forwarding the sealed sample to the laboratory. The Magistrate convicted and sentenced the respondent, and the Sessions Court affirmed on appeal.
In revision, a single judge of the Punjab and Haryana High Court set aside the conviction exclusively on two grounds: (i) the affidavit-evidence of the police officials had not been tendered for cross-examination, and (ii) the affidavits were not put to the accused during his examination under Section 313 of the Code of Criminal Procedure (CrPC). The State of Punjab obtained special leave and filed this appeal.
Legal Issues Presented
- Whether, under Section 296 CrPC, affidavit evidence of police officers who performed only formal acts may be relied upon without their being called for cross-examination when no party applies to summon them.
- Whether omission to put the contents of such formal affidavits to the accused during examination under Section 313 CrPC ipso facto vitiates the conviction.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Shankaria v. State of Rajasthan (1978) 4 SCC 453 | Affidavit evidence of a police officer on purely formal matters is admissible. | Relied upon to uphold use of affidavits for formal steps such as taking specimen fingerprints, thereby supporting similar use in the present case. |
| Shivaji Sahabrao Bobade v. State of Maharashtra (1973) 2 SCC 793 | Failure to put a circumstance to the accused under Section 313 CrPC does not automatically vitiate the trial; prejudice must be shown. | Cited to show that the High Court should have assessed prejudice rather than quashing the conviction outright. |
| Basavaraj R. Patil v. State of Karnataka (2000) 8 SCC 740 | Appellate courts can cure non-questioning under Section 313 by evaluating prejudice; explanations at the appellate stage may suffice. | Used to reinforce that the High Court, sitting in revision, should have attempted to remedy any lapse instead of reversing the conviction. |
Court's Reasoning and Analysis
Justice K. T. Thomas noted that Section 296 CrPC expressly permits evidence of a “formal character” to be given by affidavit, subject to the right of either party to seek the deponent’s presence for cross-examination. No such application was made by the defence; hence, the High Court erred in treating the absence of cross-examination as fatal.
The Court emphasised the rationale behind Section 296: avoiding unnecessary expenditure of time and resources when the witness’s testimony concerns only formalities. The affidavits in question dealt solely with forwarding the sealed sample to the laboratory—an undisputed procedural step.
Regarding Section 313 CrPC, the Court held that insisting every formal fact be put to the accused is “too pedantic.” The substantive evidence was the chemical examiner’s report, which had been put to the respondent. Citing precedent, the Court stated that omissions under Section 313 require proof of actual prejudice, which the respondent neither alleged nor demonstrated at any stage.
Consequently, the High Court’s summary reversal, without affording the prosecution an opportunity to cure any technical lapse, constituted a miscarriage of justice.
Holding and Implications
Appeal Allowed; High Court judgment set aside. The matter is remitted to the High Court for fresh disposal of the respondent’s revision after hearing both sides.
Implications: The Supreme Court reaffirmed that affidavit evidence on purely formal issues is permissible under Section 296 CrPC and that failures under Section 313 CrPC do not ipso facto invalidate convictions absent demonstrated prejudice. The decision clarifies procedural efficiency norms without creating new substantive precedent.
K.T Thomas, J.— Leave granted.
2. The 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 overboard. 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.
3. The 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 the First 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 paper 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.
4. The prosecution examined Head Constable Dhian Singh as PW 1 and Head Constable Ranji Dass as PW 2. Ext. 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 in the early morning of 11-11-1984 and brought to the police station and the case foisted on him.
5. The trial Magistrate found that the evidence of the 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. The respondent filed a revision before the High Court of Punjab and Haryana. Learned 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:
“There is no need at all to go into the details of this case inasmuch 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 the petitioner in his statement under Section 313 CrPC.”
6. We 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:
“296. (1) 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 enquiry, trial or other proceeding under this Code.
(2) 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 affidavit.”
7. The 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.
8. What 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.
9. In Shankaria v. State of Rajasthan (1978) 4 SCC 453 this Court accepted the evidence tendered on affidavit filed by a policeman who had taken specimen fingerprints 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 aforecited decision.
10. In the 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 proceedings.
11. Added 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. Learned Single Judge, on that score also, overlooked 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.
12. That apart, the 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. But if 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.
13. How is it possible to rectify or undo the lapse if it pertains to a vital piece of evidence?
14. A three-Judge Bench of this Court has observed in Shivaji Sahabrao Bobade v. 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.
15. In Basavaraj R. Patil v. State of Karnataka (2000) 8 SCC 740 a three-Judge Bench has followed the aforesaid observation and stated thus:
“17. The 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.”
16. If 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.
17. For the 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.
18. The appeal is disposed of accordingly.
Alert