Mangi Lal vs The State and Another

This is a writ petition filed for issue of a direction to the 2nd respondent, viz. III Metropolitan Magistrate, Hyderabad to re-record the evidence of the writ petitioner in C.C. No. 69/85 on the ground that the 2nd respondent made many mistakes in recording his evidence given as P.W. 3 in the said case.

The facts averred in the affidavit disclose that the writ petitioner filed a petition under S. 311, Cr.P.C., before the 2nd respondent for re-recording his evidence. Since that petition was dismissed, he filed Criminal Revision Petition No. 192 of 1987 before the Ist Addl. Metropolitan Sessions Judge. The learned Sessions Judge after a thorough scrutiny of the entire material found that there were only two mistakes, that too very minor, in recording his evidence and therefore directed recalling the writ petitioner and having those two mistakes, viz., the mistake of Jaya Trading Company to be corrected as J.R. Trading Company and the other one ''Khadove'' should be ''Khandwa'', corrected accordingly. In respect of other mistakes pointed out, the learned Sessions Judge was not satisfied and therefore rejected the prayer in respect of the balance remaining. Therefore, the petitioner sought to challenge the same and filed Crl. M.P. 241/88 before this Court. On 29th February ''88 the matter came up before me and after hearing both parties the petition was dismissed on merits. Having exhausted his remedy at different levels, the petitioner now seeks to challenge the order already become final by resorting to Art. 226 of the Constitution. Office therefore has taken an objection as regards the maintainability of the writ petition.

The Supreme Court in Shankar Ramchandra Abhyankar Vs. Krishnaji Dattatreya Bapat, had the occasion to consider a case of similar nature wherein the remedies open under civil law (instead of under criminal law as is the instant case) were exhausted and then attempt was made to invoke the jurisdiction of the High Court under Arts. 226 and 227 of the Constitution. The Supreme Court held that a writ petition ought not to have been entertained by the High Court when the respondent had already chosen the remedy of S. 115, C.P.C. If there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the Subordinate Court. The refusal to grant relief in such circumstances would be in consequence with the anxiety of the Court to prevent abuse of process as also to respect and accord finality of its own decisions. This decision of the Supreme Court applies on all fours to the case on hand since the order of the III Metropolitan Magistrate passed in a petition under S. 311, Cr.P.C., was carried in revision and thereafter even the jurisdiction of this Court under S. 482, Cr.P.C., was also invoked and exhausted. Therefore, entertaining this writ petition amounts to permitting abuse of the process of law.

Turning to the merits of the writ petition, even otherwise, it is to be seen that the evidence of the writ petitioner as P.W. 3 was recorded by the 2nd respondent on 11-8-86. It is also endorsed by the 2nd respondent that the deposition was read over to P.W. 3 (the witness), interpreted and admitted by him to be correct. Further the witness also subscribed his signature to his deposition. The complaint of the writ petitioner is that the 2nd respondent has recorded certain matters though the witness did not state and that though the witness deposed certain matters they were not correctly recorded. Chapter-XXIII of the Cr.P.C. deals with mode of taking and recording evidence. S. 277, Cr.P.C., directs that if the witness gives evidence in the language of the Court, the same shall be taken down in that language. If he gives evidence in any other language, a true translation of the same in the language of the Court may be prepared. The crucial provision involved in the instant case is S. 278, Cr.P.C., which reads :

"278. Procedure in regard to such evidence when completed :

(1) As the evidence of each witness taken under S. 275 or S. 276 is completed, it shall be read over to him in the presence of the accused, if in attendance, or of his pleader, if he appears by pleader, and shall, if necessary, be corrected.

(2) If the witness denies the correctness of any part of the evidence when the same is read over to him, the Magistrate or presiding Judge may, instead of correcting the evidence, make a memorandum thereon of the objection made to it by the witness and shall add such remarks as he thinks necessary.

(3) If the record of the evidence is in a language different from that in which it has been given and the witness does not understand that language, the record shall be interpreted to him in the language in which it was given, or in a language which he understands."

The learned Counsel for the petitioner submits that the evidence recorded from the writ petitioner was not read over to him and therefore there is violation of S. 278(1), Cr.P.C. and that at the instance of the Court attender he simply signed the deposition. It is only after going through the certified copy of the evidence, he came to know of the several mistakes and therefore he immediately filed the petition under S. 311, Cr.P.C.

Firstly, there is presumption under S. 114 of the Evidence Act that the evidence was read over to the witness, interpreted and admitted by him to be correct in view of the endorsement certified by the 2nd respondent at the bottom of the deposition. When the witness denies the factum that the deposition was read over, it is for him to displace the statutory presumption, and that the testimony of a witness put forth is found by the Court to be not believable the matter ends there. Further, evidence is recorded in the presence of both the advocates and in the open Court. In the circumstances, the averment of the petitioner that the 2nd respondent recorded certain matters which he did not state and that those he stated were not recorded correctly is not appreciable. The whole grievance was already thrashed at three stages and even the learned Ist Addl. Metropolitan Session Judge gave cogent and convincing reasons for rejecting the case of the petitioner in regard to the balance of mistakes pointed out, except in regard to the two noted supra. Further S. 278(2), Cr.P.C. contemplates making a memorandum as regards the objection raised by the witness when the evidence was read over and found by him to be not correct but not re-recording or correcting the evidence already recorded. Thus, there is no power in the Court to re-record the evidence of a witness. No doubt, there is ample power under S. 311, Cr.P.C., to recall and re-examine any person already examined but this power to the Court has to be exercised in the light and restraints of S. 278, Cr.P.C.

In AIR 1927 44 (Privy Council) the object of reading over the deposition is held to be to obtain an accurate record from the witness and not to enable the accused or his advocate to suggest corrections.

The Supreme Court in Bhagwan Singh Vs. The State of Punjab, had the occasion while dealing with S. 360, Cr.P.C. (corresponding to the new S. 278, Cr.P.C.) to consider the effect of failure to read out the deposition. By relying on the decision in AIR 1927 44 (Privy Council) , the Supreme Court held that even if the fact be true that the deposition was not read over that would only amount to a curable irregularity. The Supreme Court further held :

"Where the certificate of the Committing Magistrate endorsed on the deposition sheet states that the deposition was read out to the witness and that the witness admitted it to be correct, the Court is bound to accept it as correct under S. 80 Evidence Act, until it is proved to be untrue. The burden is on the person seeking to displace the statutory presumption and if he chooses to rely on the testimony of a witness which the Court is not prepared to believe the matter ends there. The duty displacing the presumption lies on the person who questions it."

In this view of the matter, on merits also I do not see any ground to direct issuance of the writ and accordingly the writ petition is dismissed. No costs.

Petition dismissed.