Saji Koduvath Associates

Pleadings are to be Considered as a Whole. When Lack of Pleadings Amounts to a Material Flaw?

Jojy George Koduvath

Abstract: Why ‘Particulars’ are Insisted in Pleadings

1. To give Notice to the other side.
2. To narrow down the controversy.
3. To give definiteness to the stance of parties in court.
4. Pleadings must be pregnant enough to produce an issue.
5. It is Court that draws inference as to ‘abstract’ propositions.
6. Pleadings constitute the skeleton that give shape to the case.
7. In the Absence of Pleading, Evidence cannot be Considered.

Classic Rulings on this Subject

Kusum Lata Sharma v. Arvind Singh, AIR 2023 SC 3067
Shakti Bhog Food Industries Ltd. v. Central Bank of India, AIR2020 SC 2721; 2020-17 SCC 260
Sopan Sukhdeo Sable v. Asstt. Charity Commr., (2004) 3 SCC 137
Ram Sarup Gupta v. Bishun Narain Inter College, AIR 1987 SC 1242; 1987-2 SCC 555
Ganesh Trading Co. v. Moji Ram, 1978 KHC 500: AIR 1978 SC 484
Bhagwati Prasad v. Shri Chandramaul, AIR 1966 SC 735

Fundamental Rules of Pleadings

The Supreme Court of India pointed out, in Kusum Lata Sharma v. Arvind Singh, AIR 2023 SC 3067, the fundamental rules of pleadings, as under:

The pleadings must be read as a whole,
The purport of proper pleadings is – caused no prejudice to the other side.
When a question arises as to a flaw in the pleadings, it must be considered in the light of the evidence.
Impropriety (or otherwise) of a lack of pleading is tested on the touchstone – whether it caused prejudice to the respondents-tenants (or not).

The Apex Court (Kusum Lata Sharma v. Arvind Singh, AIR 2023 SC 3067) explained the position vividly as under:

“17. A comprehensive look at the pleadings taken by the appellant along with the site-plan attached to the petition makes it evident that the appellant gave out a detailed description of the extent of accommodation available in the suit property as also the accommodation presently in her occupation and the nature and extent of her requirement. In the pleadings, it was indeed specified that the appellant was residing on the property bearing No. “C-586/587”. The pleadings taken by the appellant in paragraph 18(a)(ii) of her petition, of course, begin with the expression “as stated above” and there had not been any earlier mention of property bearing No. “C-586/587” but, there had been detailed description in the preceding paragraphs and the site plan was also attached to the petition. The appellant further made the position clear in her cross-examination that the building in question was constructed on Plot Nos.586 and 587 jointly and she and her sister-in-law were residing in the same building as one family.
18. Taking the pleadings as a whole and reading the same with the evidence, it is clear that there had not been any such mis-description of the property which would amount to a material flaw in the case of the appellant or which could have caused prejudice to the respondents-tenants.”

Object and Purpose of Pleadings

In Ram Sarup Gupta v. Bishun Narain Inter College, AIR 1987 SC 1242; 1987-2 SCC 555, it was held as under:

“The object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial it is imperative that the party should state the essential material facts so that other party may not be taken by surprise.”

Order VI, rule 1 and 2 of Code of Civil Procedure 1908 lay down the basics of pleading. They read as under:

Rule 1: Pleading: “Pleading” shall mean plaint or written statement.
Rule 2: Pleading to state material facts and not evidence:
(1) Every pleading shall contain, and contain only a statement in a concise form of the material facts on which the party pleading relies for his claim or defence as the case may be, but not the evidence by which they are to be proved.
(2) Every pleading shall, when necessary, be divided into paragraphs, numbered consecutively, each allegation being, so far as is convenient, contained in a separate paragraph.
(3) Dates, sums and numbers shall be expressed in a pleading in figures as well as in words.

Pleadings should Receive a Liberal Construction

In Ram Sarup Gupta v. Bishun Narain Inter College, AIR 1987 SC 1242; 1987-2 SCC 555, it was held as under:

“The pleadings however should receive a liberal construction, no pedantic approach should be adopted to defeat justice on hair splitting technicalities. Sometimes, pleadings are expressed in words which may not expressly make out a case in accordance with strict interpretation of law, in such a case it is the duty of the Court to ascertain the substance of the pleadings to determine the question. It is not desirable to place undue emphasis on form, instead the substance of the pleadings should be considered. Whenever the question about lack of pleading is raised the enquiry should not be so much about the form of the pleadings, instead the Court must find out whether in substance the parties knew the case and the issues upon which they went to trial.

Deficiency in Pleadings Doesn’t Matter if the Parties Knew the Case

In Bhagwati Prasad v. Shri Chandramaul, 1966-2 SCR 286, the Constitution Bench of our Apex Court observed as under :

“If a plea is not specifically made and yet it is covered by an issue by implication, and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely in the issues, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the Court has to consider in dealing with such an objection is : did the parties know that the matter in question was involved in the trial, and did they lead evidence about it? If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the other party did not lead evidence and has had no opportunity to lead evidence, would introduce considerations of prejudice, and in doing justice to one party, the Court cannot do injustice to another.”

In Ram Sarup Gupta v. Bishun Narain Inter College, AIR 1987 SC 1242; 1987-2 SCC 555, relying on Bhagwati Prasad v. Shri Chandramaul, 1966-2 SCR 286, it was held as under:

“Once it is found that in spite of deficiency in the pleadings parties knew the case and they proceeded to trial on those issues by producing evidence, in that event it would not be open to a party to raise the question of absence of pleadings in appeal.”

No Pedantic Approach and Hair Splitting Technicalities Permitted

In Sopan Sukhdeo Sable v. Asstt. Charity Commr., (2004) 3 SCC 137, it was held as under:

“15. There cannot be any compartmentalisation, dissection, segregation and inversions of the language of various paragraphs in the plaint. If such a course is adopted it would run counter to the cardinal canon of interpretation according to which a pleading has to be read as a whole to ascertain its true import. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction or words or change of its apparent grammatical sense. The intention of the party concerned is to be gathered primarily from the tenor and terms of his pleadings taken as a whole. At the same time it should be borne in mind that no pedantic approach should be adopted to defeat justice on hairsplitting technicalities.”(Quoted in: Shakti Bhog Food Industries Ltd. v. Central Bank of India, AIR 2020 SC 2721; 2020-17 SCC 260)

In Augustine @ Mervin Alexander v. Josmy @ Geetha, 2022-5 KerHC(SN) 13; 2022-4 KerLT 966, it is held that it is well settled that pleadings should receive a liberal construction. The High Court continued as under:

“No pedantic approach is to be adopted to defeat justice on hair splitting technicalities. Pleadings has to be construed reasonably. The contention of the parties has to be culled out from the pleadings by reading the same as a whole. Sometimes, pleadings are expressed in words which may not expressly make out a case in accordance with the strict interpretation of the law. In such a case it is the duty of the court to ascertain the substance of the pleadings. Whenever the question about lack of pleading is raised, the enquiry should not be so much about the form of the pleadings. The court must find out whether in substance the parties knew the case and the issues, upon which they went to trial. Once it is found that in spite of the deficiency in the pleadings, parties knew the case and they proceeded to trial on the issues by producing evidence, it would not be open to a party to raise the question of lack of pleadings [See: Ram Sarup Gupta v. Bishun Narain Inter College AIR 1987 SC 1242].”

In the Absence of Pleading, Evidence cannot be Considered

In Ram Sarup Gupta v. Bishun Narain Inter College, AIR 1987 SC 1242; 1987-2 SCC 555, it was also pointed out as under:

“6. … It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it.”

Plea of Adverse Possession

In M. Siddiq (D) Thr. Lrs. v. Mahant Suresh Das, 2020-1 SCC 1, on the question of Adverse Possession it is pointed out that the plea of adverse possession seeks to defeat rights of true owner and law is not readily accepting of such a case unless a clear and cogent basis has been made out in the pleadings and established in the evidence and that the ingredients must be set up in pleadings and proved in evidence. There can be no proof sans pleadings and pleadings without evidence will not establish a case in law. (Paras 748, 751, 752, 754 and 755)

Pleadings and Future Damages

In Bhagwati Prasad v. Chandramaul, AIR 1966 SC 735; 1966-2 SCR 286, it was held as under:

“Once it is held that the plaintiff is entitled to eject the defendant, it follows that from the date of the decree granting the relief of ejectment to the plaintiff, the defendant who remains in possession of the property despite the decree, must pay mesne profits or damages for use and occupation of the said property until it is delivered to the plaintiff. A decree for ejectment in such a case must be accompanied by a direction for payment of the future mesne profits or damages. Then as to the rate at which future mesne profits can be awarded to the plaintiff, we see no reason to differ from the view taken by the trial Court that the reasonable amount in the present case would be Rs. 300/- per month.”

Rejection of Plaint under Order 7 Rule 11 CPC and Pleading

In Church of Christ Charitable Trust & Educational Charitable Society vs. Ponniamman Educational Trust, (2012) 8 SCC 706, it is observed as under:

“10 … It is clear from the above that where the plaint does not disclose a cause of action, the relief claimed is undervalued and not corrected within the time allowed by the court, insufficiently stamped and not rectified within the time fixed by the court, barred by any law, failed to enclose the required copies and the plaintiff fails to comply with the provisions of Rule 9, the court has no other option except to reject the same. A reading of the above provision also makes it clear that power under Order 7 Rule 11 of the Code can be exercised at any stage of the suit either before registering the plaint or after the issuance of summons to the defendants or at any time before the conclusion of the trial.
This position was explained by this Court in Saleem Bhai vs. State of Maharashtra, (2003) 1 SCC 557, in which, while considering Order 7 Rule 11 of the Code, it was held as under: (SCC p. 560, para 9)
- “9. A perusal of Order 7 Rule 11 CPC makes it clear that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial court can exercise the power under Order 7 Rule 11 CPC at any stage of the suit — before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under clauses (a) and (d) of Rule 11 of Order 7 CPC, the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage, therefore, a direction to file the written statement without deciding the application under Order 7 Rule 11 CPC cannot but be procedural irregularity touching the exercise of jurisdiction by the trial court.”
It is clear that in order to consider Order 7 Rule 11, the court has to look into the averments in the plaint and the same can be exercised by the trial court at any stage of the suit. It is also clear that the averments in the written statement are immaterial and it is the duty of the Court to scrutinize the averments/pleas in the plaint. In other words, what needs to be looked into in deciding such an application are the averments in the plaint. At that stage, the pleas taken by the defendant in the written statement are wholly irrelevant and the matter is to be decided only on the plaint averments. These principles have been reiterated in Raptakos Brett & Co. Ltd. vs. Ganesh Property, (1998) 7 SCC 184 and Mayar (H.K.) Ltd. vs. Vessel M.V. Fortune Express, (2006) 3 SCC 100.
It is also useful to refer the judgment in T. Arivandandam vs. T.V. Satyapal, (1977) 4 SCC 467, wherein while considering the very same provision i.e. Order 7 Rule 11 and the duty of the trial court in considering such application, this Court has reminded the trial Judges with the following observation: (SCC p. 470, para 5)
- “5. … The learned Munsif must remember that if on a meaningful – not formal – reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order 7, Rule 11 C.P.C. taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order 10, C.P.C. An activist Judge is the answer to irresponsible law suits. The trial courts would insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage. The Penal Code is also resourceful enough to meet such men, (Chapter XI) and must be triggered against them.”
It is clear that if the allegations are vexatious and meritless and not disclosing a clear right or material(s) to sue, it is the duty of the trial Judge to exercise his power under Order 7 Rule 11. If clever drafting has created the illusion of a cause of action as observed by Krishna Iyer J., in the above referred decision, it should be nipped in the bud at the first hearing by examining the parties under Order 10 of the Code.”(Quoted in: Shakti Bhog Food Industries Ltd. v. Central Bank of India, AIR2020 SC 2721; 2020-17 SCC 260).

In Madanuri Sri Rama Chandra Murthy v. Syed Jalal, (2017) 13 SCC 174, the legal position is analysed as under:

“7. The plaint can be rejected under Order 7 Rule 11 if conditions enumerated in the said provision are fulfilled. It is needless to observe that the power under Order 7 Rule 11, CPC can be exercised by the Court at any stage of the suit. The relevant facts which need to be looked into for deciding the application are the averments of the plaint only. If on an entire and meaningful reading of the plaint, it is found that the suit is manifestly vexatious and meritless in the sense of not disclosing any right to sue, the court should exercise power under Order 7 Rule 11 CPC. Since the power conferred on the Court to terminate civil action at the threshold is drastic, the conditions enumerated under Order 7 Rule 11 CPC to the exercise of power of rejection of plaint have to be strictly adhered to. The averments of the plaint have to be read as a whole to find out whether the averments disclose a cause of action or whether the suit is barred by any law. It is needless to observe that the question as to whether the suit is barred by any law, would always depend upon the facts and circumstances of each case. The averments in the written statement as well as the contentions of the defendant are wholly immaterial while considering the prayer of the defendant for rejection of the plaint. Even when the allegations made in the plaint are taken to be correct as a whole on their face value, if they show that the suit is barred by any law, or do not disclose cause of action, the application for rejection of plaint can be entertained and the power under Order 7 Rule 11 CPC can be exercised. If clever drafting of the plaint has created the illusion of a cause of action, the court will nip it in the bud at the earliest so that bogus litigation will end at the earlier stage.” (Quoted in: Shakti Bhog Food Industries Ltd. v. Central Bank of India, AIR2020 SC 2721; 2020-17 SCC 260.)

Why should crucial documents be produced along with the Plaint or WS?

1. To prevent surprise to the opposite side.
2. To substantiate and assure pleadings, and ensure fair play.
3. To enable the court and the opposite side to understand the case fully.
4. The CPC mandates it (Order VII Rule 14 & Order VIII Rule 1A).

CPC also mandates the production of all remaining documents before framing of issues (so that the court can frame proper issues).

Documents Are Not Pleadings; But, They Support Pleadings

Pleadings mean Plaint or Written Statement. They are statements of fact alone (Order VI Rule 1 CPC).
The documents cannot be used to supplement missing facts, and will not cure the defect of ‘not pleading’ a fact merely because the document is produced with the pleadings that contain the relevant fact.
The documents, even if produced along with the Pleadings, will not automatically become evidence.
The documents cannot be used as materials to introduce new facts (without making an amendment of the pleadings).

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Foundational or Crucial Documents Be Produced Along With the Plaint or WS. Why?

Order VII* Rule 14(3)* and Order VIII Rule 1A C.P.C Confer Power to Receive Documents if ‘Good Cause‘ is shown for the Late Production of the Documents

Jojy George Koduvath

PART I

Why should foundational or crucial documents be produced along with the plaint or WS?

1. To prevent surprise to the opposite side.
2. To substantiate and assure pleadings, and ensure fair play.
3. To enable the court and the opposite side to understand the case fully.
4. The CPC mandates it (Order VII Rule 14 & Order VIII Rule 1A).

CPC also mandates the production of all remaining documents before framing of issues (so that the court can frame proper issues).

Documents Are Not Pleadings; They only Support Pleadings

Pleadings mean Plaint or Written Statement. They are statements of fact alone (Order VI Rule 1 CPC).
The documents cannot be used to supplement missing facts, and will not cure the defect of ‘not pleading’ a fact merely because the document is produced with the pleadings that contain the relevant fact.
The documents, even if produced along with the Pleadings, will not automatically become evidence.
The documents cannot be used as materials to introduce new facts (without making an amendment of the pleadings).

Relevant Provisions in the CPC

Order VII Rule 14 CPC:

“Production of document on which plaintiff sues or relies:

(1) Where a plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter such documents in a list, and shall produce it in Court when the plaint is presented by him and shall, at the same time deliver the document and a copy thereof, to be filed with the plaint.
- (2) Where any such document is not in the possession or power of the plaintiff, he shall, wherever possible, state in whose possession or power it is.
- (3) A document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.
- (4) Nothing in this rule shall apply to document produced for the cross-examination of the plaintiffs witnesses, or handed over to a witness merely to refresh his memory.”

Order VIII Rule 1A CPC:

“Duty of defendant to produce documents upon which relief is claimed or relied upon by him

.(1) Where the defendant bases his defence upon a document or relies upon any document in his possession or power, in support of his defence or claim for set-off or counter-claim, he shall enter such document in a list, and shall produce it in Court when the written statement is presented by him and shall, at the same time, deliver the document and a copy thereof, to be filed with the written statement.
(2) Where any such document is not in the possession or power of the defendant, he shall, wherever possible, state in whose possession or power it is.
(3) A document which ought to be produced in Court by the defendant under this rule, but, is not so produced shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.
(4) Nothing in this rule shall apply to documents— (a) produced for the cross-examination of the plaintiff’s witnesses, or (b) handed over to a witness merely to refresh his memory.”

Order 13 Rule 1.

“Original documents to be produced at or before the settlement of issues

.(1) The parties or their pleader shall produce on or before the settlement of issues, all the documentary evidence in original where the copies thereof have been filed along with plaint or written statement.
(2) The court shall receive the documents so produced:
Provided that they are accompanied by an accurate list thereof prepared in such form as the High Court directs.
(3) Nothing in sub-rule (1) shall apply to documents—
(a) produced for the cross-examination of the witnesses of the other party; or
(b) handed over to a witness merely to refresh his memory.”

Rule 4 of Order 18.

“Recording of evidence

.(1) In every case, the examination-in-chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the party who calls him for evidence:
Provided that where documents are filed and the parties rely upon the documents, the proof and admissibility of such documents which are filed along with affidavit shall be subject to the orders of the court.
xxx”

Rule 27 of Order 41.

“Production of additional evidence in appellate court

“(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the appellate court. But if—
(a) the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted; or
(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed; or
(b) the appellate court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the appellate court may allow such evidence or document to be produced or witness to be examined.
(2) Whenever additional evidence is allowed to be produced by an appellate court, the court shall record the reason for its admission….”

Documents Filed With the Pleadings Do Not Automatically Become Evidence

Though documents filed with the plaint or WS form part of the record, they do not automatically become evidence (that is, done at the evidentiary stage).

Requirement Of Production Of Documents Along With Plaint / WS

When deciding an application under Order VII, Rule 11 (i.e., for rejection of plaint). See: Gurmeet Singh Sachdeva v. Skyways Air Services (P) Ltd., 2025 SCC OnLine Del 3017,

Fundamental Rules of Pleadings

The Supreme Court of India pointed out, in Kusum Lata Sharma v. Arvind Singh, AIR 2023 SC 3067, the fundamental rules of pleadings, as under:

The pleadings must be read as a whole,
The purport of proper pleadings is – caused no prejudice to the other side.
When a question arises as to a flaw in the pleadings, it must be considered in the light of the evidence.
Impropriety (or otherwise) of a lack of pleading is tested on the touchstone – whether it caused prejudice to the respondents-tenants (or not).

When Documents Produced with the Plaint are Considered as Part of Pleadings

They are considered when an ambiguity arises as to pleadings. In Kusum Lata Sharma v. Arvind Singh, AIR 2023 SC 3067, our Apex Court explained the position as under:

“17. A comprehensive look at the pleadings taken by the appellant along with the site-plan attached to the petition makes it evident that the appellant gave out a detailed description of the extent of accommodation available in the suit property as also the accommodation presently in her occupation and the nature and extent of her requirement. In the pleadings, it was indeed specified that the appellant was residing on the property bearing No. “C-586/587”. The pleadings taken by the appellant in paragraph 18(a)(ii) of her petition, of course, begin with the expression “as stated above” and there had not been any earlier mention of property bearing No. “C-586/587” but, there had been detailed description in the preceding paragraphs and the site plan was also attached to the petition. The appellant further made the position clear in her cross-examination that the building in question was constructed on Plot Nos.586 and 587 jointly and she and her sister-in-law were residing in the same building as one family.
18. Taking the pleadings as a whole and reading the same with the evidence, it is clear that there had not been any such mis-description of the property which would amount to a material flaw in the case of the appellant or which could have caused prejudice to the respondents-tenants.”

When Documents Produced With the Plaint are Treated As “Part Of The Plaint”

When deciding an application under Order VII, Rule 11 (i.e., for rejection of the plaint).

The Supreme Court observed in Dahiben v. Arvindbhai Kalyanji Bhanusali (Gajrat), (2020) 7 SCC 366, as under:

“23.8. Having regard to Order VII Rule 14 CPC, the documents filed along with the plaint, are required to be taken into consideration for deciding the application under Order VII Rule 11 (a). When a document referred to in the plaint, forms the basis of the plaint, it should be treated as a part of the plaint.”(Followed in: Shri Mukund Bhavan Trust v. Shrimant Chhatrapati Udayan Raje Pratapsinh Maharaj Bhonsle, 2024 INSC 1025; 2024 KLT Online 3058).

PART II

Leave of the Court Necessary

The Supreme Court, in Sugandhi v. P. Rajkumar, AIR 2020 SC 5486; 2020-10 SCC 706, held as under:

“Sub-rule (3), as quoted above, provides a second opportunity to the defendant to produce the documents which ought to have been produced in the court along with the written statement, with the leave of the court. The discretion conferred upon the court to grant such leave is to be exercised judiciously. While there is no straight-jacket formula, this leave can be granted by the court on a good cause being shown by the defendant.”

Court Should Take a Lenient View

Our Apex Court, in Sugandhi v. P. Rajkumar, AIR 2020 SC 5486; 2020-10 SCC 706, further held as under:

“It is often said that procedure is the handmaid of justice. Procedural and technical hurdles shall not be allowed to come in the way of the court while doing substantial justice. If the procedural violation does not seriously cause prejudice to the adversary party, courts must lean towards doing substantial justice rather than relying upon procedural and technical violation. We should not forget the fact that litigation is nothing but a journey towards truth which is the foundation of justice and the court is required to take appropriate steps to thrash out the underlying truth in every dispute. Therefore, the court should take a lenient view when an application is made for production of the documents under Sub-rule (3).”

In Dewanti Devi v. Radheshyam Tiwary, 2019 SCC Online Pat 28, it is held as follows:

“6. Order 8 Rule 1A(3) of the CPC provides that the documents, which have not been produced along with the written statement, cannot be produced to the court later on without the leave of the court. Thus, if a document is to be produced by a defendant, the same is to be produced with the written statement. Subsequent production of document can be done only if the court is satisfied with the grounds explained for non-production of the documents at the time of filing of the written statement.”

Late Production & “Good Cause”

In S. Rathinaswamy v. S. Bhanumathi, AIR 2006 Mad 221; 2006-3 MLJ 593, R. Banumathi, J. found as under:

“18. The main object of Or. 7 R. 14(3) C.P.C conferring the power upon the Court to receive the documents in genuine cases is to receive the documents if good cause is shown to the satisfaction of the Court for the non-production of the documents at the earlier stage. The Courts are expected to receive the documents and give an opportunity to the parties.”

Law on Sufficient Cause

In Kasthuri v. C. Mohan, 2007-1 (Mad) LW 560 (V. Ramasubramaniam, J.), pointed out the difference between the language in the provisions of Order VII Rule 14 Sub Rule 3, after the amendment by Act 46 of 1999 and the provisions of Order XIII Rule 1 and 2 (1), as under:

“13. But it is not so. The Amendment Act 22 of 2002 has introduced a new Sub-rule (3) to Rule 14 of Order VII, in the place of the Sub-rule (3) substituted by Amendment Act 49 of 1999. The new Sub-rule (3) of Rule 14 of Order VII, after the Amendment of 2002 reads as follows:
Substituted by Act 22 of 2002 w.e.f. 1.7.2002 – (3) A document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.
Thus the deletion of the provision, enabling to production of documents “at any subsequent stage of the proceedings” under Order XIII Rule 2 as it stood before amendment, has been compensated by the introduction of Sub-rule (3) under Rule 14 of Order VII under Amendment Act of 2002. Therefore, the right of a party to file a document at the time of hearing of the suit, if he has not already filed such document along with the plaint, is retained by the Amendment of 2002. All that is required under such circumstances, is that the plaintiff should take “the leave of the Court“. Even the words “good cause” that appeared under Order XIII Rule 2(1) before the amendment are absent in the newly introduced Sub Rule 3 of Rule 14 of Order VII of the Code of Civil Procedure. As a matter of fact, even in the judgment cited by the learned Counsel appearing for the petitioners in Madanlal v. Shyamlal, 2002 (1) SC 535, the Apex Court observed that the power under Order XIII Rule 2 of the Code of Civil Procedure(before amendment) should be exercised liberally and that “good cause” requires lesser decree of proof than that of “sufficient cause”. Therefore, in view of the provisions contained in Order VII Rule 14 (3) of the Code of Civil Procedure, as amended by Act 22 of 2002, the respondents were entitled to file the documents in question, with the leave of the Court, which is what they have done in this case. The power of the Court to grant leave for a plaintiff to file additional documents under Order VII Rule 14 (3) is not even circumscribed by words such as “good cause” that were found in Order XIII Rule 2 before Amendment.”

In Hindustan Unilever Limited, Chennai v. Reckitt Benckiser (India) Ltd., 22 Mar 2018(Mad), after referring to Kasthuri v. C. Mohan, 2007 (1) LW 560 (Mad), it was observed as under:

“8. The sum and substance of the conclusions of the learned Judge is that on a comparative reading of the provisions of the Code of Civil Procedure, regarding the receipt of documents as they stood prior to the amendment in 1999 and after the amendment would show that the power of the Court to receive documents is much more wider and liberal than what it was prior to the amendment of the Code.
In S. Rathinaswamy v. S. Bhanumathi, reported in 2006 (2) CTC 491, this Court had considered the scope of Order VII Rule 14(3) of the Code of Civil Procedure, again after referring to the amendments to the Code of Civil Procedure, introduced in the year 1999 and 2002, it was held that the main object of Order VII Rule 14(3), conferring the power of the Court to receive the documents in genuine cases is to receive the documents if good cause, is shown to the satisfaction of the Court, for the non-production of the documents at an earlier stage. It was also pointed out that after all the procedure is only a handmaid of justice and Courts should always attempt to do complete justice between the parties, based on the evidence that is produced and not shut out the evidence.”

Madhya Pradesh High Court, in Usha Kiran Saxena v. Amit Maheshwari, Jan 8, 2025 (Ramesh Phadke, J.) stated as follows:

“11. Whenever documents are sought to be adduced as a corroborative evidence in support of the claim made in the plaint rigor of the rules can be said to be relaxed. Order 7 Rule 14 (3) C.P.C. enables the Court to receive the documents which are not filed along with the plaint in genuine cases and obviously the reason behind this is to avoid delay and when the documents are necessary for adjudication of the matter in dispute then the application can be allowed even if it is belatedly filed.”

The Madhya Pradesh High Court relied on the Apex Court decision in the case of Rani Kusum v. Kanchan Devi Rani, AIR 2005 SC 3304; 2005-6 SCC 705, which laid down as under:-

“No person has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner for the time being by or for the Court in which the case is pending, and if, by an Act of Parliament the mode of procedure is altered, he has no other right than to proceed according to the altered mode. (See Blyth v. Blyth (1966 (1) All E.R. 524 (HL). A procedural law should not ordinarily be construed as mandatory, the procedural law is always subservient to and is in aid to justice. Any interpretation which eludes or frustrates the recipient of justice is not to be followed. (See Shreenath and Anr. v.Rajesh and Ors. (AIR 1998 SC 1827) Processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice.”

Madhya Pradesh High Court, in a subsequent decision, Usha Kiran Saxena v. Amit Maheshwari (Anand Pathak, J.), July 27, 2023, held as under:

“7. …. Although documents were filed but not accompanied with the application under Order VII Rule 14(3) of CPC. Objection was raised by the petitioner but once the trial Court allowed the application preferred by respondent No.1 under Order VII Rule 14(3) of CPC then objections of petitioner were impliedly considered and rejected. Even otherwise, it is bi-parte order, therefore, all the parties were given opportunity to advance arguments.
8. Procedures are handmaid to Justice and not Master of it and taking such hyper technical approach does not lead to justice.”

The Delhi High Court in Pradeep Bailey v. Gilma Daniel (18 June, 2025, Ravinder Dudeja, J.) after quoting Order 7 Rule 14 CPC, said as under:

“11. A plain reading of Order 7 Rule 14 CPC makes it clear that plaintiff has to present the relevant documents with the plaint. Subsequently, such documents cannot be presented without the leave of the court. The provision thus creates a bar on production of additional documents if the same have not been mentioned in the list of documents annexed to the plaint and produced at the time of filing the same, unless the leave of the court is sought. This principle was reiterated by the Coordinate Bench of this Court in Polyflor Limited Vs. Sh. A. Goenka & Ors. in OA No. 84/2016 CS (OS) 504/2016.
12. The Coordinate Bench of the this Court in Haldiram (India) Pvt. Ltd. (supra) held that it is a discretionary power of the court to allow belated filing of a document. The relevant portion of the judgment is reproduced as under:
“21. In any event, both under the old Order 7 Rule 18 sub-rule (1) and new Order 7 Rule 14 sub-rule (3) CPC a new document can certainly be produced on behalf of plaintiff at the final hearing of suit, but the same has to be done with leave of the Court. It is not that the plaintiff has a legal vested right to file a document at a belated stage i.e. at the final hearing of the suit. The said provision gives a discretionary power to the Court, which needless to say has to be exercised in a reasonable and legal manner. In fact, this power has to be exercised sparingly and for some overpowering reason and not as a matter of routine. If petitioners‟ interpretation of Sub Rule 3 is accepted, it would make it impossible for the trial court to conclude the hearing of any suit.”
13. It is no more res-integra that the rules of procedure are handmaid of justice and should not come in the way of delivering substantial justice. In the case of Sugandhi (dead) by Lrs. & Anr. Vs. P. Rajkumar, represented by his power agent Imam Oli(2020) 10 SCC 706, the Apex Court discussed the factors which must be considered while granting permission to produce additional documents under Section 8 Rule 1-A CPC. It was observed that procedure is handmaid of justice. If the procedural violation does not cause prejudice to the adversary party, procedural and technical hurdles should not come in the way of the courts while doing substantial justice. Thus, the courts should take a lenient view while deciding an application under Order 8 Rule 1-A CPC.
14. In Mrs. Nalini Lal Vs State of NCT of Delhi & Others, TEST.CAS.22/2009, a Coordinate Bench of this Court while allowing the application under Order 7 Rule 14 of CPC, held that the said provision allows for the submission of additional documents if the Court grants leave and if such documents are necessary for resolving the real issues between the parties. It was again emphasized that procedural rules should not hinder substantive justice.
15. In the case of Mohanraj Vs. Kewalchand Hastimal Jain &Ors. AIR 2007 Bom. 69, the Bombay High Court discussed the object of Order 7 Rule 14 CPC and observed that the provision is enacted to assist the parties and the courts in the manner of production of documentary evidence while adjudicating the disputes, to arrive at an appropriate decision on the matter. In this regard, the provision is to be construed liberally and a pedantic approach should not be taken while enforcing the provision of law. A documentary evidence which is relevant and material for the just and appropriate decision should be allowed to be produced and merely because the party failed to enter the same in the list annexed to the plaint, it should not be ignored unless the plaintiff can show that there would be real prejudice caused if such permission is granted.

Finally the High Court held as under:

“21. The documents referred to in the application under Order 7 Rule 14 CPC are for the purpose of showing that petitioner was not sitting idle and was indulging in work and was earning income, as also for showing that he has been making the payment of house tax of the property since after its purchase and was making payment of electricity and water bills and was also looking after his mother. The trial court failed to appreciate that additional documents sought to be placed were relevant to counter the averments of the respondent, as mentioned in the written statement. Undisputedly, the documents are relevant. Some of the documents are, in fact public documents. The authenticity and genuineness of the documents can be considered after granting an opportunity to the petitioner to prove the same. The contention of the petitioner that Wills dated 19.09.2000 & 24.08.2000 were not in his possession and he received them from his sister in law at a later stage, and therefore, being filed belatedly, cannot be disbelieved at this stage. The learned trial court disbelieved the argument of the petitioner that documents could not be filed due to negligence of the previous counsel of the petitioner. Be that as it may, even if it was a mistake on the part of the petitioner, as per the decision of the Coordinate Bench in the case of Nishant Hannan (supra), the parties do make the mistakes in the conduct of their cases and therefore such mistakes should be allowed to be corrected unless there is a great prejudice to the other side. The trial is still at an initial stage. The parties are yet to lead evidence, and therefore, no great prejudice shall be caused to the respondent in case the documents are allowed to be taken on record.
22. The procedural rules under the CPC are intended to ensure substantive justice and exclusion of the documents in the present case would amount to elevating procedural technicalities over substantive justice, thereby, defeating the very purpose of fair adjudication.
23. In view of the above, I find that the impugned order suffers from gross illegality and perversity in disallowing the petitioner/plaintiff from filing the additional documents by dismissing the application of the petitioner/plaintiff.”

Pleading and Evidence

In Ram Sarup Gupta v. Bishun Narain Inter College, AIR 1987 SC 1242, 1987-2 SCC 555, it was held as under:

“6. … It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is to enable the adversary party to know the case it has to meet. To have a fair trial it is imperative that the party should settle the essential material facts so that the other party may not be taken by surprise. The pleadings however should receive a liberal construction; no pedantic approach should be adopted to defeat justice on hair-splitting technicalities. Sometimes, pleadings are expressed in words that may not expressly make out a case in accordance with a strict interpretation of the law. In such a case the court must ascertain the substance of the pleadings to determine the question. It is not desirable to place undue emphasis on form, instead, the substance of the pleadings should be considered. Whenever the question about lack of pleading is raised the enquiry should not be so much about the form of the pleadings; instead, the court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that in spite of deficiency in the pleadings, parties knew the case and they proceeded to trial on those issues by producing evidence in that event it would not be open to a party to raise the question of absence of pleadings in appeal….” (Quoted in: Mohammed Abdul Wahid v. Nilofer, 2023 INSC 1075, (2024) 2 SCC 144); Mohan Hirachand Shah v. Geeta Kumarchand Shah,19-03-2024)

It is also pointed out in this decision:

“Whenever the question about lack of pleading is raised the enquiry should not be so much about the form of the pleadings, instead; the court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that in spite of deficiency in the pleadings parties knew the case and they proceeded to trial on those issues by producing evidence, in that event it would not be open to a party to raise the question of absence of pleadings in appeal.
In Bhagwati Prasad v. Shri Chandramaul, [1956] 1 SCR 286 a Constitution Bench of this Court considering this question observed:
“If a plea is not specifically made and yet it is covered by an issue by implication, and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely in the issues, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the Court has to consider in dealing with such an objection is: did the parties know that the matter in question was involved in the trial, and did they lead evidence about it? If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to reply upon a matter in respect of which the other party did not lead evidence and has had no opportunity to lead evidence, would introduce considerations of prejudice, and in doing justice to one party, the Court cannot do injustice to another.”

Bachhaj Nahar v. Nilima Mandal (2008) 17 SCC 491:

“10(i). No amount of evidence can be looked into, upon a plea which was never put forward in the pleadings. A question which did arise from the pleadings and which was not the subject matter of an issue, cannot be decided by the court.” ….” (Quoted in: Mohan Hirachand Shah v. Geeta Kumarchand Shah,19-03-2024)

Biraji @ Brijraji v. Surya Pratap (2020) 10 SCC 729:

“8. …It is fairly well settled that in absence of pleading, any amount of evidence will not help the party….” (Quoted in: Mohan Hirachand Shah v. Geeta Kumarchand Shah,19-03-2024)

Delhi High Court, in Brij Praksh Gupta v. Ashwini Kumar, on 6 February, 2020, Prathiba M. Singh, J., observed as under:

“A party to the suit cannot be permitted to travel beyond his pleadings. If any evidence is tried to be adduced which has no foundation in the pleadings, the Court always has a power to discard such evidence while finally deciding the suit or proceeding.”

Sikkim HC held in Surja Narayan Pradhan v. Jumden Lepcha (May 11, 2022) 03 SIK CK 0021, as under:

“It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered and no party should be permitted to travel beyond its pleadings.”

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General

The Doctrine of ‘Prima Facie Case’ in Criminal Cases

Jojy George Koduvath.

Preface

The term ‘prima facie’ has been authoritatively explained by the Supreme Court in Balvir Singh v. State of Uttarakhand, AIR 2023 SC 5551, wherein the Court laid down the meaning and scope of the words as under:

“The Latin expression prima facie means “at first sight”, “at first view”, or “based on first impression”. According, to Webster’s Third International Dictionary (1961 Edn.), “prima facie case” means a case established by “prima facie evidence” which in turn means “evidence sufficient in law to raise a presumption of fact or establish the fact in question unless rebutted”.
In both civil and criminal law, the term is used to denote that, upon initial examination, a legal claim has sufficient evidence to proceed to trial or judgment. In most legal proceedings, one party (typically, the plaintiff or the prosecutor) has a burden of proof, which requires them to present prima facie evidence for each element of the charges against the defendant. If they cannot present prima facie evidence, or if an opposing party introduces contradictory evidence, the initial claim may be dismissed without any need for a response by other parties.”

Introduction:

The doctrine of ‘prima facie Case’ arises for consideration in various stages of criminal proceedings, as under:

For Ordering Investigation under [Section 156(3), CrPC ] and Taking Cognizance & Issuing Process [Sections 190 & 204 CrPC]:
What is required is the Prima Facie existence of sufficient ground to proceed. At this stage, the Magistrate needs only to be satisfied that the complaint discloses a cognizable offence warranting investigation.
For Quashing of FIR [Section 482, CrPC ] :
The test is whether the allegations in the FIR Prima Facie disclose the commission of a cognizable offence. The Court, while exercising jurisdiction under Section 482 of the Code or Article 226 of the Constitution, is not required to assess the merits of the allegations or examine the probability of conviction.
For Framing of Charge / Discharge [Sections 227 to 239 CrPC]:
The Court must examine whether the materials in the charge sheet and accompanying documents Prima Facie disclose sufficient grounds for proceeding against the accused. At this stage, the standard of proof required for conviction is not applicable—what is required is only a Prima Facie, not proof beyond reasonable doubt.
Grant or Refusal of Bail:
While deciding bail applications, courts examine whether a Prima Facie case exists against the accused.

1. S. 156(3) – Prima Facie ‘EXISTENCE OF SUFFICIENT GROUND TO PROCEED’

It is held in Sadiq B. Hanchinmani v. The State of Karnataka as under:

“38. In the background of the factual position, the JMFC’s Order dated 18.01.2018 cannot be faulted. Enough material is available to justify a full-fledged investigation by the police. The JMFC, to our mind, had rightly referred the matter for investigation to the police since a prima facie case stood made out against the accused, in view of the material that was available with the JMFC.
xxx
40. The … JMFC had referred the matter to police under Section 156(3) of the Code, and the usage of ‘further’ was not in the context of Section 173(8) of the Code, which fine distinction the First Impugned Order has glossed over. The case(s) at hand, in our considered view, demonstrate material showing the commission of cognizable offence(s), on the face of it, which would merit police investigation. Therefore, interdiction of the Impugned Orders is necessitated.”

Sadiq B. Hanchinmani v. The State of Karnataka: Supreme Court held – Prima Facie Case as to Commission of Cognizable Offence, Merit Police Investigation

Saji Koduvath, Advocate, Kottayam.

Introduction

For Ordering Investigation under S. 156(3): Prima Facie ‘EXISTENCE OF SUFFICIENT GROUND TO PROCEED’ is enough.
For quashing the FIR: What is to be looked into is whether the allegations in the FIR Prima Facie Discloses The Commission Of A Cognizable Offence or not. The Court is not required to consider the merits while considering quashing the first information report under Section 482 Cr. P.C. or under Article 226 of the Constitution of India.

These were the matters discussed by the Supreme Court of India, in Sadiq B. Hanchinmani v. The State of Karnataka, 4 November 2025 (Ahsanuddin Amanullah, Pankaj Mithal, JJ.).

Also Read: The Doctrine of ‘Prima Facie Case’ in Criminal Cases

Facts of the case

A Rent Agreement produced by the accused, on an E-Stamp Paper, was fake. Even the Inspector General of Registration and Commissioner of Stamps stated that Prima Facie the E- Stamp used was a fake E-Stamp. It was contended – since there was Prima Facie material that substantiates the appellant’s claim that the E- Stamp Paper is a forged document, the possibility of a conspiracy hatched by the accused cannot be ruled out.

The prime question for consideration

The prime question for consideration was the following:

Whether the direction for investigation to the police issued by the JMFC under Section 156(3) of the Code, which was quashed by the Impugned Orders, is justified based on the facts and circumstances of the cases.

The Apex Court relied on the following decisions:

1. Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra, (2021) 19 SCC 401,
2. Madhao v. State of Maharashtra, (2013) 5 SCC 615,
3. Ramdev Food Products Private Limited v. State of Gujarat, (2015) 6 SCC 439.

The Apex Court, while exercising the powers to quash the first information report under Section 482 Cr. P.C or under Article 226 of the Constitution of India, it is pointed out in a three-judge bench decision (Dr. Dhananjaya Y. Chandrachud, M.R. Shah, Sanjiv Khanna, JJ.) in Neeharika Infrastructure Pvt. Ltd. v State of Maharashtra, (2021) 19 SCC 401, that the court has to exercise the powers in a very sparing manner. It is observed as under:

‘16. In a given case, there may be allegations of abuse of process of law by converting a civil dispute into a criminal dispute, only with a view to pressurise the accused. Similarly, in a given case the complaint itself on the face of it can be said to be barred by law. The allegations in the FIR/complaint may not at all disclose the commission of a cognizable offence. In such cases and in exceptional cases with circumspection, the High Court may stay the further investigation. However, at the same time, there may be genuine complaints/FIRs and the police/investigating agency has a statutory obligation/right/duty to enquire into the cognizable offences. Therefore, a balance has to be struck between the rights of the genuine complainants and the FIRs disclosing commission of a cognizable offence and the statutory obligation/duty of the investigating agency to investigate into the cognizable offences on the one hand and those innocent persons against whom the criminal proceedings are initiated which may be in a given case abuse of process of law and the process. However, if the facts are hazy and the investigation has just begun, the High Court would be circumspect in exercising such powers and the High Court must permit the investigating agency to proceed further with the investigation in exercise of its statutory duty under the provisions of the Code. Even in such a case the High Court has to give/assign brief reasons why at this stage the further investigation is required to be stayed. The High Court must appreciate that speedy investigation is the requirement in the criminal administration of justice.’
xxx
‘33.15. When a prayer for quashing the FIR is made by the alleged accused and the court when it exercises the power under Section 482 CrPC, only has to consider whether the allegations in the FIR disclose the commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR.’ (emphasis supplied)

In Madhao v. State of Maharashtra, (2013) 5 SCC 615 (P. Sathasivam, Jagdish Singh Khehar, JJ.), it was held as under:

“18. When a Magistrate receives a complaint he is not bound to take cognizance if the facts alleged in the complaint disclose the commission of an offence. The Magistrate has discretion in the matter. If on a reading of the complaint, he finds that the allegations therein disclose a cognizable offence and the forwarding of the complaint to the police for investigation under Section 156(3) will be conducive to justice and save the valuable time of the Magistrate from being wasted in enquiring into a matter which was primarily the duty of the police to investigate, he will be justified in adopting that course as an alternative to taking cognizance of the offence itself. As said earlier, in the case of a complaint regarding the commission of cognizable offence, the power under Section 156(3) can be invoked by the Magistrate before he takes cognizance of the offence under Section 190(1)(a). However, if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to revert back to the pre-cognizance stage and avail of Section 156(3).”
“This position of law was recently reiterated in Lavanya C v Vittal Gurudas Pai, 2025 SCC OnLine SC 499, where one of us (P. Mithal, J.) was part of the coram.”

In Ramdev Food Products Private Limited v. State of Gujarat, (2015) 6 SCC 439, three learned Judges (T.S. Thakur, Adarsh Kumar Goel, R. Banumathi) opined after noticing Cardinal Mar George Alencherry v. State of Kerala, (2023) 18 SCC 730, as under:

“13. We may first deal with the question as to whether the Magistrate ought to have proceeded under Section 156(3) or was justified in proceeding under Section 202(1) and what are the parameters for exercise of power under the two provisions.
xxx
22. Thus, we answer the first question by holding that:
22.1. The direction under Section 156(3) is to be issued, only after application of mind by the Magistrate. When the Magistrate does not take cognizance and does not find it necessary to postpone the issuance of process and finds a case made out to proceed forthwith, direction under the said provision is issued. In other words, where on account of credibility of information available, or weighing the interest of justice it is considered appropriate to straightaway direct investigation, such a direction is issued.
22.2. The cases where Magistrate takes cognizance and postpones issuance of process are cases where the Magistrate has yet to determine
- “existence of sufficient ground to proceed”.
Category of cases falling under para 120.6 in Lalita Kumari [Lalita Kumari v. State of U.P., (2014) 2 SCC 1: (2014) 1 SCC (Cri) 524] may fall under Section 202. Subject to these broad guidelines available from the scheme of the Code, exercise of discretion by the Magistrate is guided by interest of justice from case to case.
xxx
38. In Devarapalli Lakshminarayana Reddy v. V. Narayana Reddy [(1976) 3 SCC 252: 1976 SCC (Cri) 380], National Bank of Oman v. Barakara Abdul Aziz [(2013) 2 SCC 488: (2013) 2 SCC (Cri) 731], Madhao v. State of Maharashtra [(2013) 5 SCC 615: (2013) 4 SCC (Cri) 141], Rameshbhai Pandurao Hedau v. State of Gujarat [(2010) 4 SCC 185: (2010) 2 SCC (Cri) 801], the scheme of Sections 156(3) and 202 has been discussed. It was observed that power under Section 156(3) can be invoked by the Magistrate before taking cognizance and was in the nature of pre-emptory reminder or intimation to the police to exercise its plenary power of investigation beginning with Section 156 and ending with report or charge-sheet under Section 173. On the other hand, Section 202 applies at post-cognizance stage and the direction for investigation was for the purpose of deciding whether there was sufficient ground to proceed.”

Finding of the Apex Court

It is held in Sadiq B. Hanchinmani v. The State of Karnataka as under:

“38. In the background of the factual position, the JMFC’s Order dated 18.01.2018 cannot be faulted. Enough material is available to justify a full-fledged investigation by the police. The JMFC, to our mind, had rightly referred the matter for investigation to the police since a Prima Facie case stood made out against the accused, in view of the material that was available with the JMFC.
xxx
40. The … JMFC had referred the matter to police under Section 156(3) of the Code, and the usage of ‘further’ was not in the context of Section 173(8) of the Code, which fine distinction the First Impugned Order has glossed over. The case(s) at hand, in our considered view, demonstrate material showing the commission of cognizable offence(s), on the face of it, which would merit police investigation. Therefore, interdiction of the Impugned Orders is necessitated.”

Conclusion

In the background of the factual position, the Apex Court held that the JMFC’s Order cannot be faulted, and that enough material was available to justify a full-fledged investigation by the police, and that the JMFC had rightly referred the matter for investigation to the police since a Prima Facie case stood made out against the accused, in view of the material that was available with the JMFC.

End Note:

Framing the Charges – Only a Prima Facie Case is to be Satisfied

In Bhawna Bai v. Ghanshyam, AIR 2020 SC 554, 2020-2 SCC 217 (Hrishikesh Roy, A.S. Bopanna, R. Banumathi, JJ.), it is observed as under:

“12. Though the circumstances alleged in the charge sheet are to be established during the trial by adducing the evidence, the allegations in the charge sheet show a prima facie case against the accused-respondent Nos.1 and 2. The circumstances alleged by the prosecution indicate that there are sufficient grounds for proceeding against the accused. At the time of framing the charges, only prima facie case is to be seen; whether case is beyond reasonable doubt, is not to be seen at this stage. At the stage of framing the charge, the court has to see if there is sufficient ground for proceeding against the accused. While evaluating the materials, strict standard of proof is not required; only prima facie case against the accused is to be seen.”

Trusts and Trust Deeds

Saji Koduvath, Advocate, Kottayam.

Introduction

A trust is what its authors or founders intended, as revealed from the deed of dedication, if any, or on other substantial evidence. In CIT v. Kamala Town Trust, AIR 1996 SC 620, 1996-7 SCC 349, it is pointed out as under:

“A Trust Deed is a document which sets out the terms of an understanding between the author of the trust and the trustees. Though in form, the trustees are not signatories to the instrument as drawn up, they are parties to the instrument in a real sense, for it is on the terms of the instrument that they accept office and proceed to administer the trust. The law obliges them to act upon the terms of the Trust Deed, and they cannot commit a breach thereof.”

The trustee is bound to fulfil the purpose of the trust, and to obey the directions of the author of the trust given at the time of its creation (Sec. 11 of the Indian Trusts Act, 1882). Usually, there will be trust deeds which direct the administration of the trusts, which include how the trustees are appointed, and how new trustees are selected.

As per the Indian Trust Act. 1882, the trustee holds the trust-property for ‘management’ or ‘administration’. The legal ownership vests in the trustee for the purposes of the trust, and its administration should be in accordance with the provisions of the deed of trust (Ramabai Govind v. Raghunath Vasudevo: AIR 1952 Bom 106).

In Abdul Kayum Vs. Alibhai, AIR 1963 SC 309, our Apex Court expounded the following legal incidents of trusteeship:

(i) Trustees cannot transfer their duties, functions & powers to some other body of men and create them trustees in their own place unless this is clearly permitted by the trust deed, or agreed to by the entire body of beneficiaries (Sec. 48);
(ii) A trustee is not bound to accept the trust; but having once entered upon the trust he cannot renounce the duties and liabilities except with the permission of the Court or with the consent of the beneficiaries or by the authority of the trust deed itself (Sec. 46).
(iii) A trustee cannot delegate his office or any of his functions except in some specified cases (Sec. 47).

Trustee is Obliged to Manage for Benefit of the Beneficiaries

As pointed out by our Apex Court, in WO Holdsworth Vs. State of Uttar Pradesh,[AIR1957 SC 887; See also: Ramabai Govind Vs. Raghunath Vasudevo: AIR 1952 Bom 106.] the Indian Trusts Act, 1882 declares vesting legal ownership with trustees. The vesting of ownership of trust property with the trustee is under an obligation to manage it for the benefit of the beneficiaries.[Chhatra Kumari Vs. Mohan Bikram: AIR 1931 PC 196; Kansara Abdulrehman Sadruddin Vs. Trustees Maniar Jamat: AIR 1968 Guj 184. See also: RamabaiGovind Vs. Raghunath Vasudevo: AIR 1952 Bom 106; Chikkamuniyappa Reddy Vs. State of Karnataka: ILR 1997 Kar 2460; Mathura Bai Fatechand Damani Vs. Regional PF: 1992 WLN 206(Raj)] Though, in a trust, the trust property must have been transferred to the trustees, and the trust property vests in the trustee as owner thereof, it does not absolutely belong to any individual.

Trustee has no ‘Proprietor Interest’

It is observed by the Supreme Court in State Bank of India Vs. Special Secretary Land and Land Revenue [1995-Supp. 4 SCC 30] that the trustee would become the owner of the trust property for the purpose of effectively executing or administering the trust for the benefit of the beneficiaries and for due administration thereof, and not for any other purpose. Merely because the property is vested in the trustee as the legal owner, he has no ‘proprietor interest’, inasmuch as the beneficial interest is ‘carved out’ in the property itself.

Trustee Deals with the Property According to the Deed of Trust

The property is vested in trustees subject to the obligations upon which the trustees accepted the trust.[Chikkamuniyappa Reddy Vs. State of Karnataka: ILR 1997 Kar 2460; Mathura Bai Fatechand Damani Vs. Regional PF: 1992 WLN 206(Raj)] The trustee deals with the property in accordance with the provisions of the deed of trust.[Ramabai Govind Vs. Raghunath Vasudevo: AIR 1952 Bom 106] In dealings with the world at large, the trustee personates or represents as the owner of the property.[Govardhandhari Devsthan Vs. Collector of Ahmednagar: AIR 1982 Bom 332. Kapoorchand Rajendra Vs. Parasnath Digambar: 2000-1 MPJR 199]The legal ownership which vests in the trustee is for the purposes of the trust and to administer [Bhavna Nalinkant Vs. Commr Gift Tax: 2002-174 CTR 152,2002-255 ITR 529] the same.

Basic Principle of Foundation of a Trust Cannot be Changed

The trustees are bound to administer the affairs of the trust to attain the objects (Commr of IT Vs. Rajmitra Bhailal: 1964-54 ITR 241) envisioned by the founder and in accordance with his directions laid down in the trust deed; and the acts and actions of trustees ultra vires such objects or directions are void. If a trustee fails to administer in accordance with the terms of the trust, it amounts to breach of trust (RP Kapur Vs. Kaushalya Educational Trust:1982-21 DLT 46; ILR 1982-1Del 801).

The basic principle of foundation of a trust cannot be changed. Tudor on Charities [6th Edn. At p. 131], explained it as under:

“When a charity has been founded and trusts have been declared, the founder has no power to revoke, vary or add to the trusts. This is so irrespective of whether the trusts have been declared by an individual, or by a body of subscribers, or by the trustees.” (Agasthyar Trust Vs. Commr IT Madras ; 1998 AIR (SCW)3945 ;1998-5 SCC 588)

No Change to Basic Principles, Even By Majority, Unless Specific Power

Fundamental principles upon which an association is founded (as revealed from the deed of dedication, if any, or on other substantial evidence) are also not open to alteration, even for the majority of its members, unless such a power is specifically reserved. This principle is laid down in

Milligan Vs. Mitchell, (1837) 3 My. & Cr. 72 : 40 ER 852,
Attorney General Vs. Anderson, (1888) 57 LJ Ch 543, and
Free Church of England Vs. Overtoun, (1904) AC 515

These decisions are referred to in –

Prasanna Venkitesa Rao Vs. Srinivasa Rao, AIR 1931 Mad. 12.

Sankar Padam Thapa v. Vijaykumar Dineshchandra Agarwal: Landmark Decision on Trust – A Trust Cannot Be Made as a Party to a Litigation

Jojy George Koduvath.

See Earlier Article in ‘indianlawlive‘:
‘Does a Cheque-Case under NI Act Lie Against a Trust? Prana Educational and Charitable Trust v. State of Kerala, ILR 2023-4 Ker 252 – Whether Correctly Decided?’

Preface

Sankar Padam Thapa v. Vijaykumar Dineshchandra Agarwal (Ahsanuddin Amanullah, Prashant Kumar Mishra, JJ), 2025 INSC 1210 (09-10-2025), is a landmark decision on trust.

It held:

A Trust Is Not a Legal Person.
A Trust Operates through its Trustees.
Trustees Can Maintain and Defend a Suit.
Trust is an Obligation and not a Legal Entity.
No Legal Requirement For A Trust To Be Made A Party.
Just as a Managing Director is responsible for the affairs of a company, a Chairman or Managing Trustee is responsible for the affairs and administration of a Trust, within the powers and duties conferred by the Trust Deed and law.

Question Considered

Two principal questions arose for consideration in this case. They are:

(i) Whether a complaint under Section 138 of the Negotiable Instruments Act, 1881, is maintainable against the Chairman or a Trustee of a Trust when the cheque in question has been issued on behalf of the Trust, without the Trust itself being made an accused; and
(ii) Whether the complainant under Section 138 must make specific averments regarding the accused-trustee’s role and responsibility in the conduct of the day-to-day affairs of the Trust, even though the person is admittedly a Trustee.

It arose from the decision of the Meghalaya High Court (2023-1 GLT 344) which quashed the proceedings before the Judicial Magistrate, Shillong.

The Impugned High Court Judgment

The respondent issued a Cheque to the complainant under the signature of the respondent as authorised signatory of Orion, a trust. The Cheque was dishonoured. It led to the filing of a complaint under Sections 138 and 142 of the NI Act, as well as under Section 420 of the Indian Penal Code, 1860. The Respondent preferred a Criminal Petition under Section 482 of the Code of Criminal Procedure, 1973, before the High Court seeking to quash the complaint, on the ground, inter alia, that Orion (Trust) is a juristic entity and a necessary party.

Part I

Apex Court Adjudicated – Trust is NOT a Legal Person

Decisions relied on (in Sankar Padam Thapa v. Vijaykumar Dineshchandra Agarwal) to show – Trust is not a ‘legal entity’ capable of being sued – are:

1. Pratibha Pratisthan v. Manager, Canara Bank, (2017) 3 SCC 712.
2. K P Shibu v. State of Kerala, 2019 SCC OnLine Ker 7585, 2019 (3) KHC 1.

Pratibha Pratisthan v. Manager, Canara Bank

In Pratibha Pratisthan v. Manager, Canara Bank, (2017) 3 SCC 712, it is held

A Trust is not a person.
It could not be a consumer.
A Trust cannot be a complainant.
It would not fall under the definition of ‘person’ as per Section 2(m) of the Consumer Protection Act.

The Apex Court, in Sankar Padam Thapa v. Vijaykumar Dineshchandra, quoted the following from the Pratibha Pratisthan case-

“4. A reading of the definition of the words “complaint”, “complainant” and “consumer” makes it clear that a trust cannot invoke the provisions of the Act in respect of any allegation on the basis of which a complaint could be made. To put this beyond any doubt, the word “person” has also been defined in the Act and Section 2(1)(m) thereof defines a “person” as follows:
- “2. (1)(m) “person” includes—
- (i) a firm whether registered or not;
- (ii) a Hindu undivided family;
- (iii) a cooperative society;
- (iv) every other association of persons whether registered under the Societies Registration Act, 1860 (21 of 1860) or not;”
5. On a plain and simple reading of all the above provisions of the Act it is clear that a trust is not a person and therefore not a consumer. Consequently, it cannot be a complainant and cannot file a consumer dispute under the provisions of the Act.”

After quoting Sections 3 (definition of Trust) and 13 (Trustee to protect title to trust-property) of the Trust Act, the Apex Court observed in Sankar Padam Thapa v. Vijaykumar Dineshchandra Agarwal as under:

“23. To our mind, the above-extracted Sections of the Trusts Act would also favour the view we are taking, as the obligation to ‘maintain and defend’ suits is placed on the shoulders of a Trustee and not the Trust itself. It is clear that only a Trustee has the obligation to file, maintain and defend any suit on behalf of the Trust. Meaning thereby, that a Trust does not have a separate legal existence of its own, making it incapable of suing or being sued.”

KP Shibu v. State of Kerala

The Kerala High Court, in KP Shibu v. State of Kerala (B. Sudheendra Kumar, J.), 2019 (3) KHC 1, held –

Trustees can maintain and defend a suit to protect the Trust property.
A Trust is not a juristic person or a legal entity, and has no legal existence of its own.
A Trust itself cannot sue or be sued in a court of law.
A Trust would not fall within the term ‘association of individuals’.

In Sankar Padam Thapa v. Vijaykumar Dineshchandra Agarwal the Apex Court quoted the following from KP Shibu v. State of Kerala, 2019 (3) KHC 1-

“16. Thus, it is clear from the above provisions that all the trustees are the owners of the property, but they are obliged to use the same in a particular manner. If a number of trustees exist, they are the joint owners of the property. The trustees are bound to maintain and defend all suits, for the preservation of the trust-property and the assertion or protection of the title thereto. Thus, it appears that the “Trust” is not capable of suing and being sued in a court of law, even though the trustees can maintain and defend suits for the preservation and protection of the trust-property. Therefore, a “Trust” is not a juristic person or a legal entity, as the juristic person has a legal existence of its own and hence it is capable of suing and being sued in a court of law. Thus, it appears that a “Trust” is not like a body corporate, which has a legal existence of its own and therefore can appoint an agent. The above discussion would make it clear that a “Trust” is not a body corporate.”

Trust is an Obligation and not a Legal Entity

Trust, as defined under the Indian Trusts Act, 1882 is an obligation and not a legal entity.

The Apex Court, while discussing this matter, referred (with approval) the following decisions placed by the Appellant:

KR Rajan v. Cherian K Cherian, 2019 SCC OnLine Ker 4699 (Kerala High Court)
Duli Chand v. M/s MPTC Charitable Trust, 1983 SCC OnLine Del 270 (Delhi High Court)
V Chandrasekaran v. Venkatanaicker Trust, 2016 SCC OnLine Mad 33745 (Madras High Court)
Narayana Iyer v. Anandammal Adheena Trust, (2021) 3 CTC 776; (Madras High Court)
Kansara Abdulrehman Sadruddin v. Trustees of the Maniar Jamat Ahmedabad, AIR 1968 Guj 184 (Gujarat High Court)
Vijay Sports Club v State of Bengal, 2019 SCC OnLine Cal 2331 (Calcutta High Court).

A Trust operates through its Trustees

After referring the aforestated decisions, the Apex Court (in Sankar Padam Thapa v. Vijaykumar Dineshchandra Agarwal) said as under:

“25. …. A Trust is also not like a corporation which has a legal existence of its own and therefore can appoint an agent. A Trust operates through its Trustees, who are legal entities. We may gainfully refer to the decision of the Kerala High Court in KR Rajan (supra), where the said Court has rightly held:
‘7. The legal status of a trust, is thus well discernible. Trust not being a legal person, and the Code of Civil Procedure not providing any enabling provision for the Trust to sue or for being sued in its name, there is no merit in the contention that the Trust is to be arrayed as a co-nominee party. The arraying of the trust in its own name is otiose or redundant. It is the trustees who are to be impleaded to represent the trust. Therefore, the contention of the petitioner on the ground of non-joinder, also fails’.”

Trust Is An Obligation Imposed On The Ostensible Owner – Trustee

The Apex Court held further as under (in Sankar Padam Thapa v. Vijaykumar Dineshchandra Agarwal):

“26. Ergo, it is clear that though a Trust may act or even be treated as an entity for certain legal purposes and not all legal purposes, a Trust is an obligation imposed on the ostensible owner of the property to use the same for a particular object – for the benefit of a named beneficiary or charity, and it is the Trustee(s) who are bound to maintain and defend all suits and to take such other steps with regard to the nature, land or the value of the Trust property, that may be reasonably required for the preservation of the Trust property, and the assertion of protection of title thereto, subject to the provisions of the instructions of Trust to take such other steps.”

No Legal Requirement For A Trust To Be Made A Party

The Apex Court held further as under (in Sankar Padam Thapa v. Vijaykumar Dineshchandra Agarwal):

“27. There exists no ambiguity about there being no legal requirement for a Trust to be made a party in a proceeding before a Court of Law since it is only a/the Trustee(s) who are liable and answerable for acts done or alleged to have been done for and on behalf of the said Trust. From a perusal of Orion’s Deed of Trust, of which the Respondent is the Chairman/Authorized Signatory, it emerges clearly that the relevant clauses deal with the Trustee insofar as administering and holding the funds and properties of the Trust are concerned. Which is to say that the Trust (i.e., Orion) operates only through the Trustee(s) and that the objects thereof were for charitable purposes. The Deed of Trust also provides for permitting one or more Trustees to operate a bank account. It becomes all the more apparent that it is the Trustees alone, through whom the Trust funds/property(ies) are managed and dealt with. The Trust itself is without any independent legal status.”

Apex Court Disapproved Prana Educational Trust Case

The Apex Court (in Sankar Padam Thapa v. Vijaykumar Dineshchandra Agarwal) disapproved Prana Educational and Charitable Trust v. State of Kerala, 2023 (6) KHC 175, holding as under:

“32. We do not approve of the manner in which the learned Single Judge in Prana Educational and Charitable Trust (supra) decided to ignore binding precedent in K P Shibu (supra), which was a judgment rendered by another learned Single Judge of the same Court, earlier in point of time, merely by noting ‘it is discernible that the said decision is not so elaborative and the interpretation of the term “association of individuals” not done by applying the ratio of ejusdem generis.’ It was not open to the learned Judge in Prana Educational and Charitable Trust (supra) to prefer the view expressed by other High Courts in preference to the view of a Bench of the own High Court of equal strength expressed previously. At the most, recording his disagreement with the view in K P Shibu (supra), the learned Judge in Prana Educational and Charitable Trust (supra) ought to have referred the matter to the learned Chief Justice of the High Court seeking constitution of a larger Bench. The only other way Prana Educational and Charitable Trust (supra) could have gotten over K P Shibu (supra) despite being a co-equal Bench would have been by undertaking an analysis via the principles of per incuriam and/or sub-silentio, as undertaken by a 3-Judge Bench recently in A Raja v D Kumar, 2025 SCC OnLine SC 1033. We say this illustratively. Not as a matter of routine can a later Bench of equal strength refuse to follow an earlier decision of a Bench of equal strength. The law hereon was stated in National Insurance Company Limited v Pranay Sethi, (2017) 16 SCC 680 and Union Territory of Ladakh v Jammu and Kashmir National Conference, 2023 SCC OnLine SC 1140. Therefore, while not disturbing Prana Educational and Charitable Trust (supra) inter- parties, we declare the statement of law therein incorrect to the extent it rules on the issue before us, on account of failure to adhere to binding precedent.”

Read Also:

Part II

Requirement of Averments – Role of Trustee-Accused in Affairs of Trust

The position of a Managing Director in a company carries responsibility for its affairs. A similar principle applies to Trusts — the Trustees (authorised signatory or Managing Trustee, where designated) are responsible for the administration and conduct of the Trust’s affairs, subject to the powers and duties defined by the Trust Deed and applicable law.

The Apex Court (in Sankar Padam Thapa v. Vijaykumar Dineshchandra Agarwal) relied upon the decision SMS Pharmaceuticals Ltd. v Neeta Bhalla, (2005) 8 SCC 89 [3-Judge Bench], wherein it was held that a position of a Managing Director would suggest responsibility of the person holding the said position, in the day-to-day affairs of the Company.

The following portion from SMS Pharmaceuticals Ltd. (supra) is quoted by the Apex Court.

“…. The answer to the question posed in sub-para (b) has to be in the negative. Merely being a director of a company is not sufficient to make the person liable under Section 141 of the Act. A director in a company cannot be deemed to be in charge of and responsible to the company for the conduct of its business. …
…. the managing director or joint managing director would be admittedly in charge of the company and responsible to the company for the conduct of its business. When that is so, holders of such positions in a company become liable under Section 141 of the Act. By virtue of the office they hold as managing director or joint managing director, these persons are in charge of and responsible for the conduct of business of the company. Therefore, they get covered under Section 141. So far as the signatory of a cheque which is dishonoured is concerned, he is clearly responsible for the incriminating act and will be covered under sub-section (2) of Section 141.”

The Apex Court also sought support from KK Ahuja v. VK Vora, (2009) 10 SCC 48, which held as under:

“27. The position under Section 141 of the Act can be summarised thus:
.(i) If the accused is the Managing Director or a Joint Managing Director, it is not necessary to make an averment in the complaint that he is in charge of, and is responsible to the company, for the conduct of the business of the company. It is sufficient if an averment is made that the accused was the Managing Director or Joint Managing Director at the relevant time. This is because the prefix “Managing” to the word “Director” makes it clear that they were in charge of and are responsible to the company, for the conduct of the business of the company.”

The Apex Court also relied on Sunita Palita v. Panchami Stone Quarry, (2022) 10 SCC 152, where it was observed:

“36. The High Court also rightly held that the Managing Director or Joint ManagingDirector would admittedly be in charge of the company and responsible to the company for the conduct of its business by virtue of the office they hold as Managing Director or Joint Managing Director. These persons are in charge of and responsible for the conduct of the business of the company, and they get covered under Section 141 of the NI Act.”

End Notes

Trustees Can Maintain and Defend a Suit

Sections 3 and 13 of the Trusts Act read thus:

“3. Interpretation-clause:
“Trust”—A “trust” is an obligation annexed to the ownership of property, and arising out of a confidence reposed in and accepted by the owner, or declared and accepted by him, for the benefit of another, or of another and the owner;
the person who reposes or declares the confidence is called the “author of the trust”; the person who accepts the confidence is called the “trustee”;
the person for whose benefit the confidence is accepted is called the “beneficiary”; the subject-matter of the trust is called “trust-property” or “trust money”;
the “beneficial interest” or “interest” of the beneficiary is his right against the trustee as owner of the trust-property; and the instrument, if any, by which the trust is declared is called the “instrument of trust”;
a breach of any duty imposed on a trustee, as such, by any law for the time being in force, is called a “breach of trust”; and in this Act, unless there be something repugnant in the subject or context, “registered” means registered under the law for the registration of documents for the time being in force;
a person is said to have “notice” of a fact either when he actually knows that fact, or when, but for wilful abstention from inquiry or gross negligence, he would have known it, or when information of the fact is given to or obtained by his agent, under the circumstances mentioned in the Indian Contract Act, 1872, Section 229;
and all expressions used herein and defined in the Indian Contract Act, 1872, shall be deemed to have the meanings respectively attributed to them by that Act.
xxx
13. Trustee to protect title to trust-property—A trustee is bound to maintain and defend all such suits, and (subject to the provisions of the instrument of trust) to take such other steps as, regard being had to the nature and amount or value of the trust-property, may be reasonably requisite for the preservation of the trust-property and the assertion or protection of the title thereto.”

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Book No. 2: A Handbook on Constitutional Issues

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Book No. 3: Common Law of CLUBS and SOCIETIES in India

Book No. 4: Common Law of TRUSTS in India

General Principles
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Ayodhya and Sabarimala Disputes
General

Right of a Co-Accused or Co-Defendant to Cross-Examine another Accused’s/Defendant’s Witness is Limited – It is Possible Only When the Statement of the Witness Becomes “Adverse”

Saji Koduvath, Advocate, Kottayam.

CONSTITUTIONAL BASIS

Article 21 – Right to Life and Personal Liberty: The Supreme Court has consistently held that Article 21 includes the right to a fair trial, which necessarily includes the right to confront and cross-examine adverse witnesses.

In Sidhartha Vashisht v. State (NCT of Delhi), (2010) 6 SCC 1, our Apex Court held as under:

“In the Indian Criminal jurisprudence, the accused is placed on a somewhat advantageous position than under different jurisprudence of some of the countries in the world. The criminal justice administration system in India places human rights and dignity for human life at a much higher pedestal. In our jurisprudence an accused is presumed to be innocent till proved guilty, the alleged accused is entitled to fairness and true investigation and fair trial and the prosecution is expected to play balanced role in the trial of a crime. The investigation should be judicious, fair, transparent and expeditious to ensure compliance to the basic rule of law. These are the fundamental canons of our criminal jurisprudence and they are quite in conformity with the constitutional mandate contained in Articles 20 and 21 of the Constitution of India.” (Quoted in: Rattiram v. State of M.P., AIR 2012 SC 1485; (2012) 4 SCC 516)

INDIAN EVIDENCE ACT, 1872 (Indian Sakshya Adhiniyam, 2025)

Section 138, Indian Evidence Act

Order of Examinations “Witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined.”
Any adverse party has the right to cross-examine.
If a co-accused’s interests are adverse to the witness or to the party calling the witness, the co-accused becomes an “adverse party” for that limited purpose and may cross-examine.

CODE OF CRIMINAL PROCEDURE, 1973 (CrPC) Indian Nagarik Suraksha Sanhitha, 2025

Evidence for Prosecution

Section 231 CrPC:

The prosecution shall be called upon to lead evidence, and the accused shall have the right to cross-examine prosecution witnesses.

Section 233, CrPC –

Evidence for Defence: The accused may enter on his defence and produce his own witnesses.

Court Decisions

(a) In Bhuboni Sahu v. The King, AIR 1949 PC 257

The Privy Council (Sir John Beaumont) observed – “A confession of a co-accused is obviously evidence of a very weak type. It does not indeed come within the definition of ‘evidence’ contained in S. 3 of the Evidence Act. It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross-examination.” (Quoted in: Haricharan Kurmi v. State of Bihar, AIR 1964 SC 1184; Adambhai Sulemanbhai Ajmeri v. State of Gujarat, 2014-7 SCC 716; Rabindra Kumar Pal @ Dara Singh VS Republic of India, AIR 2011 SC 1436; 2011-2 SCC 490; Superintendent of Police, CBI/SIT v. Nalini, (1999) 5 SCC 253.)

(b) In P. Sanjeeva Rao v. State of A.P., AIR 2012 SC 2242

Our Supreme Court examined the scope of the provisions of Section 311 Cr.P.C. and held as under:
“Grant of fairest opportunity to the accused to prove his innocence was the object of every fair trial, observed this Court in Hoffman Andreas v. Inspector of Customs, Amritsar, (2000) 10 SCC 430. The following passage is in this regard apposite:
‘In such circumstances, if the new Counsel thought to have the material witnesses further examined, the Court could adopt latitude and a liberal view in the interest of justice, particularly when the Court has unbridled powers in the matter as enshrined in Section 311 of the Code. After all the trial is basically for the prisoners and courts should afford the opportunity to them in the fairest manner possible.’
‘We are conscious of the fact that recall of the witnesses is being directed nearly four years after they were examined in chief about an incident that is nearly seven years old….. we are of the opinion that on a parity of reasoning and looking to the consequences of denial of opportunity to cross-examine the witnesses, we would prefer to err in favour of the appellant getting an opportunity rather than protecting the prosecution against a possible prejudice at his cost. Fairness of the trial is a virtue that is sacrosanct in our judicial system and no price is too heavy to protect that virtue. A possible prejudice to prosecution is not even a price, leave alone one that would justify denial of a fair opportunity to the accused to defend himself.” (Quoted in: Natasha Singh v. CBI, 2013 5 SCC 741)

CODE OF CIVIL PROCEDURE, 1908 (CPC)

CPC does not expressly mention “cross-examination” though its procedural framework implies it through:

Order XVIII Rule 4 & 5: Evidence of witnesses to be taken orally in open court (subject to cross-examination by the adverse party).
- Order XVIII Rule 2(2): Parties have the right to “state their case and produce their evidence.”
- Order XVIII Rule 15: Continuation of hearing by successor judge includes evidence and cross-examination already done.

When several defendants are present, and their defences are mutually adverse, each defendant has the right to cross-examine the witness of the other.

Principle in Civil Trials

If the defenses of co-defendants are joint or identical, one defendant cannot cross-examine the other’s witness as an “adverse party.”
- But if their defenses are hostile or conflicting, each becomes an adverse party and gains the right to cross-examine.

Treatises

Sarkar on Evidence, eight edition p.1141, it is said as under:

“No special provision is made in the Evidence Act for the cross-examination of the co-accused’s or co-defendant’s witnesses. But the procedure to be adopted may be regulated by the well-known rule that no evidence should be received against one who had no opportunity of testing it by cross-examination; as it would be unjust and unsafe not to allow a co-accused or co- defendant to cross-examine witness called by one whose case was adverse to his, or who has given evidence against. If there is no clash of interest or if nothing has been said against the other party, there cannot be any right of cross-examination.

Quoted in:

Ennen Castings Private Ltd. v. Sundaresh, AIR 2003 Kar 293
Chinnaiah v. Valliammal, 2023-3 LW 356; 2023-4 MLJ 544
Akhilesh Singh v. Krishan Bahadur Singh, 2020-4 CivCC 779; 2020-1 JLJ 452; 2020-1 MPLJ 457
Shiv Pratap Singh Tomar v. Seema Tomar, 2018(1) MPWN 118; 2018 (4) MPLJ 74
Bhajinder Singh v. Hardev Singh, 2017-3 CivCC 260; 2017-238 DLT 422; 2017-3 LJR 7
Mohamed Ziaulla v. Sorgra Begum, 1997 ILR Kar 1378; 1997-5 KarLJ 709
Sohan Lal VS Gulab Chand, AIR 1966 Raj 229

In ‘Principles and Digest of the Law of Evidence’ by M. Monir, third edition, p.1114 , it is said as under:

“A defendant may cross-examine a co-defendant or any other witness who has given evidence against him, and reply on such evidence, though there is no issue joined between them.”

Phipson on Evidence, tenth edition, para.1538 reads as under:

“A defendant may cross-examine a co-defendant or any other witness who has given evidence against him, and reply on such evidence though there is no issue joined between them.”

Court Decisions

1. In Ennen Castings Private Ltd. v. Sundaresh, AIR 2003 Kar 293, it is said as under:

“9. AS a general rule, evidence is not legally admissible against a party, who at the time it was given had no opportunity to cross-examine the witness or of rebutting their testimony by other evidence. When two or more persons are tried on the same indictment and are separately defended any witness called by one of them may be cross-examined on behalf of the others, if he gives any testimony to criminate them. A defendant may cross-examine his co-defendant who gives evidence or any of his co-defendant’s witnesses, if his co-defendant’s interest is hostile to his own.
10. THOUGH there is no specific provision in the Indian Evidence Act providing for such an opportunity for a defendant-respondent to cross-examine a co-defendant/co-respondent, however, having regard to the object and scope of cross-examination, it is settled law that when allegations are made against the party to the proceedings before that evidence could be acted upon, that party should have an ample opportunity to cross-examine the person who had given the evidence against him. It is only after such an opportunity is given, and witness is cross-examined that evidence becomes admissible.”

2. In Shiv Pratap Singh Tomar v. Seema Tomar, 2018(1) MPWN 118; 2018 (4) MPLJ 74, after quoting the above treatise it was observed as under:

“8. Though there is no specific provision in the Indian Evidence Act providing for such an opportunity for a defendant-respondent to cross-examine a co-defendant/ co-respondent, however, having regard to the object and scope of cross-examination, it is settled law that when allegations are made against the party to the proceedings, before that evidence could be acted upon, that party should have an ample opportunity to cross-examine the person who had given the evidence against him. It is only after such an opportunity is given, and the witness is cross-examined that evidence becomes admissible. (Quoted in:)

3. In Akhilesh Singh v. Krishan Bahadur Singh, 2020-4 CivCC 779; 2020-1 JLJ 452; 2020-1 MPLJ 457, (after quoting the said passages in Shiv Pratap Singh Tomar v. Seema Tomar, 2018(1) MPWN 118; 2018 (4) MPLJ 74) it was held as under:,

“9. Therefore, it is very clear from the aforesaid passages that it is settled law that no evidence should be received against one who had no opportunity of testing it by cross-examination; as it would be unjust and unsafe not to allow a co-accused or co-defendant to cross-examine a witness called by one whose case was adverse to him, or who has given evidence against. If there is no conflict of interest, such an opportunity need not to given. Therefore, the condition precedent for giving an opportunity to a defendant/respondent to cross-examine a co-respondent or a defendant is either from the pleadings of the parties or in the evidence, there should exist conflict of the interest between them. Once it is demonstrated that their interests is not common and there is a conflict of interest and evidence has been adduced, affecting the interest of the co-defendant/ co-respondents, then before the Court could act on that evidence, the person against whom the evidence is given should have an opportunity to cross-examine the said witness, so that ultimately truth emerges on the basis of which the Court can act.”

Conclusion

The right to cross-examine is both a statutory and constitutionally guaranteed right.

On the criminal side, a co-accused may cross-examine another’s witness only when the testimony adversely affects him.
On the civil side, a co-defendant may do so only when their defences are conflicting or adverse.

This doctrine ensures the principle of natural justice — audi alteram partem.

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Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Principles and Procedure

PROPERTY LAW

Title, ownership and Possession

Recovery of Possession:

Adverse Possession

Land Laws/ Transfer of Property Act

Land Reform Laws

Power of attorney

Evidence Act – General

Sec. 65B

Admission, Relevancy and Proof

Law on Documents

Documents – Proof and Presumption

Interpretation

Contract Act

Law on Damages

Easement

Stamp Act & Registration

Divorce/Marriage

Negotiable Instruments Act

Criminal

Pradeep Nirankarnath Sharma v. The State of Gujarat: The police have no discretion to conduct a preliminary inquiry before registering an FIR in cognizable offences

Arbitration

Will

Book No. 2: A Handbook on Constitutional Issues

Religious issues

Book No. 3: Common Law of CLUBS and SOCIETIES in India

Book No. 4: Common Law of TRUSTS in India

General Principles
Dedication and Vesting
Trustees and Management
Breach of Trust
- Breach of Trust and Removal of Trustees
Suits by or against Trusts
Law on Hindu Religious Endowments
Temples, Gurudwaras, Churches and Mosques – General
- Legal Personality of Temples, Gurudwaras, Churches and Mosques
Constitutional Principles
Ayodhya and Sabarimala Disputes
General

What is Binding Judicial Precedent – In a Nutshell

Saji Koduvath, Advocate, Kottayam

No Binding Precedent if relevant STATUTORY PROVISION was Not considered. [Union of India v. Maniklal Banerjee, AIR 2006 SC 2844]

Where no consideration was given to the question, the decision cannot be said to be binding; and precedents SUB SILENTIO – Without Arguments – are of NO MOMENT. [A-One Granites v. State of U.P., 2001-3 SCC 537]

A decision is available as a precedent only if it DECIDES a QUESTION OF LAW. [State of Punjab v. Surinder Kumar, AIR 1992 SC 1593: 1992-1 SCC 489]. Not facts. [Prakash Chandra Pathak v. State of Uttar Pradesh, AIR 1960 SC 195]

RATIO DECIDENDIis Binding Precedent: Mere Casual Expressions – Not of Much Avail.[ Girnar Traders v. State of Maharashtra, (2007) 7 SCC 555; State of Maharashtra v. Bhakti Vedanta Book Trust, AIR 2013 SC 1667; 2013-4 SCC 676; Shrirampur Municipal Council v. Satyabhamabai Bhimaji Dawkher, AIR 2013 SC 3757; 2013 5 SCC 627; Arun Kumar Aggarwal v. State of Madhya Pradesh, AIR 2011 SC 3056; 2014-13 SCC 707).

For Binding Precedent, finding must be ‘RATIO DECIDENDI’ (necessary to the decision), and Not obiter dicta. [Allen in ‘Law in the Making’; Quoted in: Chandrapal Singh v. State of U. P. (All), 2023-11 ADJ 543; Chandrapal Singh v. State of U. P. (All), 2023-11 ADJ 543)]

Court’s order is binding on the parties under res judicata; the RATIO DECIDENDIis bindingon other Courts as binding precedent. [The Modern English Legal System (4th Edition) by Smith, Bailey and Gunn (Sweet & Maxwell, 2002), pages 518-519]

What is of the essence in a decision is its ratio and not every observation found therein. [State of Orissa v. Sudhansu Sekhar Misra, AIR 1968 SC 647; Union of India v. Dhanwanti Devi, 1996-6 SCC 44; Secunderabad Club v. CIT, 2023 SCC OnLine SC 1004, 2023-457 ITR 263 (SC)

The doctrine of precedent mandates that an exposition of lawmust be followed and applied. [State of U.P. v. Ajay Kumar Sharma, 2016-15 SCC 289].

Res judicata bars raising the same issue. Judicial precedent is not concerned with issues between parties. (Spencer Bower, Turner and Handley’s Commentary on the Doctrine of Res Judicata (Butterworths: London, Edinburgh, Dublin – 1996, pages 8 and 9)

Res judicata pertains to the parties; precedent refers to a binding declaration of law that applies to courts or authorities. [Indian Broadcasting and Digital Foundation v. Telecom Regulatory Authority of India, 01 Nov 2024, 2024 KER 80988].

A decision on the ‘construction of that document’ can operates as a judicial precedent against one though he was not a party to that litigation (Sahu Madho Dass v. Mukand Ram, 1955 AIR SC 481).

A later judgment will not hold good if it had not taken note of an earlier judgment rendered by a Bench of co-equal strength; and the earlier judgment prevails, and it cannot be seen as per incuriam (Sundeep Kumar Bafna v. State of Maharashtra AIR 2014 SC 1745, 2014 (16) SCC 623).

“Nothing In This Adhiniyam Shall Apply To Deny The Admissibility” – New Provision (S. 61, BSA) to Ensure that S. 63, BSA (S. 65B, Evidence Act) is an Enabling Provision

Saji Koduvath, Advocate, Kottayam.

Abstract

1. Section 61 of the Bharatiya Sakshya Adhiniyam, 2023, affirms that a copy of an electronic record (computer output) can be produced and proved by any method permissible under the Act for proving a document.
2. The expression “nothing in this Adhiniyam shall apply” in Section 61 is enacted with a view to override the effect of the non obstante clause in Section 63.
3. The procedural requirements under Section 63 (such as the furnishing of a certificate and hash value, etc.) apply only where the party opts to prove a copy of an electronic record (computer output) under the special method prescribed by Section 63.

Purport of S. 61, BSA, 2023

Sec. 61, BSA, says – Nothing in this Adhiniyam shall apply to deny the admissibility of an electronic or digital record in the evidence on the ground that it is an electronic or digital record—
- and such record shall, subject to section 63, have the same legal effect, validity and enforceability as other documents.
The first part of Section 61 — “Nothing in this Adhiniyam shall apply to deny the admissibility of an electronic or digital record in the evidence on the ground that it is an electronic or digital record” — is broadly worded and makes no distinction between an original and a copy of an electronic record.
- Therefore, this clause ensures the admissibility of electronic records — whether original or copy — solely on the ground of their digital nature.
The expression “subject to Section 63” in Section 61, BSA implies that the procedural requirements under Section 63 (such as the furnishing of a certificate and hash value, etc.) apply only where the party opts to prove a copy of an electronic record (computer output) under the special method prescribed by Section 63.
That is, the copy of an electronic record (computer output) can be proved by any other method provided under the Act (for proving a document).

Other Methods to Establish Proof are:

(i) oral evidence of one who can vouchsafe the same,
(ii) circumstantial evidence,
(iii) invoking ‘presumption’ and
(iv) express admission by the other side.

“Nothing in this Adhiniyam shall Apply to Deny the Admissibility”: Significance

The words “nothing in this Adhiniyam shall apply to deny the admissibility” in Section 61 are also made to expand the scope of admissibility of Electronic Evidence. The non-obstante clause in Section 63, BSA is capable of giving two (divergent) interpretations–

First, Section 63, BSA is an enabling provision to admit ‘computer output’ (copy – derived from the original) as ‘document’ itself, in a simpler manner, by the deeming provision, ‘notwithstanding anything contained in the Act’. That is, computer output (copy) can also be proved by any other manner provided for proving any other document.
Second, a computer output (copy) can be proved only under the provisions of Section 63, BSA, ‘notwithstanding anything contained in the Act’. (It is the view taken by the Supreme Court in Arjun Panditrao v. Kailash Kushanrao, (2020)3 SCC 216.)

The words in the new Section 61, “nothing in this Adhiniyam shall apply to deny the admissibility”, are an emphatic delineation of the legislative intent on the following matters –

1. Section 63, BSA is an enabling provision to admit ‘computer output’ (copy) as a ‘document’ itself, in a simpler(?) manner, by the deeming provision ‘notwithstanding anything contained in the Act’.
2. The interpretation given to Section 63, BSA, that a ‘computer output (copy) can be proved only’ under the provisions of Section 63, BSA, ‘notwithstanding anything contained in the Act’, is not accepted by the legislature.
- Or, the word “nothing” in Section 61 overrides, or nullifies, the effect of the non obstante clause in Section 63.
3. Thereby, the words, ‘subject to section 63’ in Section 61, BSA, only direct to undergo the requirements in Section 63 (that is, production of Section 63 certificate, and HASH certificate) to prove the Computer output — only when one opts to prove it under the provisions of Section 63: that is, he can adopt any other method provided in the BSA.

Note: If this interpretation is not given, Section 61, the new provision in the BSA, stands meaningless.

Also Read: ‘STATEMENTS’ alone can be proved by ‘CERTIFICATE’ u/s. 65B

End Notes

“HASH value/s of the electronic/digital record/s”

The Certificate required in Section 63(4)(c) of the new Act must be “in the form specified in the Schedule”. It appears that this certificate is needed in addition to the Certificate that is required in sub-section (4) as regards the matters enumerated therein; or the Certificate should contain (additionally) the matters enumerated in sub-section (4).

The Form in the Schedule directs to state as under:

“I state that the HASH value/s of the electronic/digital record/s is …… ……… …… , obtained through the following algorithm –
SHA1:
SHA256:
MD5:
Other …….. …….. …….. (Legally acceptable standard)
(Hash report to be enclosed with the certificate)”

A Discordant Note

The requirement for this certificate is unnecessary, especially in situations where there is no dispute regarding the computer output (copy or print-out). It may be more feasible for many litigants to bring the original device, such as a CCTV Camera, computer, laptop, or mobile phone, to court than to get the HASH value fixed through an expert.

It is not clear –

(i) What is the precise purpose of ascertaining the hash value(s) of the (original) electronic or digital record?
- Note: It appears that the hash value(s) of the original record are required to be stated, rather than that of the copy (‘computer output’) actually produced before the court. This raises a doubt: how is the court to verify the authenticity of the copy if the original’s HASH value alone is referenced?
(ii) Why does the requirement of including HASH value(s) appear only in the Schedule (certificate format) and not in the main body of Section 63 itself?

The lack of explicit mention in the section text also creates uncertainty about whether HASH values are ‘mandatory’ or merely a ‘directory’ one.

Section 63(4)(c), BSA

Section 63(4)(c), BSA reads as under:

“(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person in charge of the computer or communication device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to bestated to the best of the knowledge and belief of the person stating it in the certificate specified in the Schedule.”

A question may arise –

Because the term “hash value” is not explicitly used the main body of Section 63(4)(c) BSA, can it be argued – Hash Value Certificate is not mandatory but directory (or merely illustrative of the best practices)?

An argument is possible (“hash value” certificate is not mandatory) for two matters –

1. The requirement in the Certificate stated in Section 63(4)(c) is laid down in the sub-section (2) of Sec. 63. The “Part A” Certificate in the schedule contains all things in sub-section (2) of Sec. 63. So the “Part B” Hash Value Certificate is not mandatory as per the “Section”.
2. The words “sufficient for a matter to be” in the sub-section make it clear – the ‘verbatim adherence’ to the certificate format is not mandatory;*^.* no doubt, the substance or contents thereof (particularly, the phraseology – “best of the knowledge and belief”) must have been placed in some (other) form. The particulars in the Certificate being the matters enumerated in the sub-section (2) of Sec 63 (and nothing is stated as regards Hash Value), the ‘Part B’ Hash Value Certificate cannot be a mandatory one.
- *^.*Note:
- 1. See the difference between (i) reading Sec. 63(4)(c) without the words – sufficient for a matter to be and (ii) reading with these words. Relevant portion of Sec. 63(4)(c) is given below:
  - “(c) ….. for the purposes of this sub-section it shall be sufficient for a matter to bestated to the best of the knowledge and belief of the person stating it in the certificate specified in the Schedule.”
- 2. The beginning portion of Sec. 63(4)(c) emphasises that it pertains to the matters enumerated in sub-section(2) alone, and not to hash-value. Sec. 63(4)(c) begins as under:
  - “(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person in charge of the computer or communication device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate…”
- 3. It appears that the hash value(s) of the original record are expected to be stated, rather than those of the copy (or “computer output”) actually produced before the court. This raises several questions, including: how is the court to verify the authenticity of the copy, if only the original’s HASH is referenced?

Possible Counter Arguments

First: The “form A” itself requires Hash Value Certificate.
Second: Section 63(4)(c) says, “a certificate specified in the Schedule”. The phrase “specified in the Schedule” explicitly ties the main section to the Schedule and makes it mandatory.
Third: The Schedule provides a single, Certificate, divided into two parts – “Part A and “Part B”. It is not presented as two separate certificates, one mandatory and one optional.
Fourth: Legislative Intent (i.e., for ensuring the digital integrity of electronic records) reflects the mandatory nature.

Conclusion

The ‘Hash Value Certificate’ in the BSA is shrouded in several potential ambiguities. To dispel these uncertainties, a legislative amendment or a definitive ruling by an authoritative court that takes into account all pertinent arguments in this matter is imperative.

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Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Principles and Procedure

PROPERTY LAW

Title, ownership and Possession

Recovery of Possession:

Adverse Possession

Land Laws/ Transfer of Property Act

Land Reform Laws

Power of attorney

Evidence Act – General

Sec. 65B

Admission, Relevancy and Proof

Law on Documents

Documents – Proof and Presumption

Interpretation

Contract Act

Law on Damages

Easement

Stamp Act & Registration

Divorce/Marriage

Negotiable Instruments Act

Criminal

Pradeep Nirankarnath Sharma v. The State of Gujarat: The police have no discretion to conduct a preliminary inquiry before registering an FIR in cognizable offences

Arbitration

Will

Book No. 2: A Handbook on Constitutional Issues

Religious issues

Book No. 3: Common Law of CLUBS and SOCIETIES in India

Book No. 4: Common Law of TRUSTS in India

General Principles
Dedication and Vesting
Trustees and Management
Breach of Trust
- Breach of Trust and Removal of Trustees
Suits by or against Trusts
Law on Hindu Religious Endowments
Temples, Gurudwaras, Churches and Mosques – General
- Legal Personality of Temples, Gurudwaras, Churches and Mosques
Constitutional Principles
Ayodhya and Sabarimala Disputes
General

Admissibility of Photographs, and Photo-Identification, in Court Cases

Adv. Saji Koduvath, Advocate, Kottayam.

Nutshell – Photograph Evidence

Photographs are admissible in evidence as documents.	P. Gopalkrishnan @ Dileep v. State of Kerala, AIR 2020 SC 1; 2020-9 SCC 161
While considering a case on dowry death, the prosecution argued that a *photograph* was not admissible in evidence as neither the person who took the photograph nor its negative was produced in evidence. But, the court accepted the photograph as ‘no dispute was raised by the prosecution witnesses’.	Shoor Singh v. State of Uttarakhand, AIR 2024 SC 4551
A large number of photographs were marked and considered in this case. In para 525, it is stated – the witness “was confronted with photographs of the inscription” There were three sets of albums containing photographs taken by the State Archaeological Department pursuant to an order dated 10 January 1990 (Para 533). In para 538, the Court considered the evidence of a witness as to the “photographs placed within the structure in 1990”.	M. Siddiq v. Mahant Suresh Das, 2020-1 SCC 1 (Ayodhya case)
The factum of photo identification (of an accused) by PW 2, as witnessed by the officer concerned, is a relevant and admissible piece of evidence.	Rabindra Kumar Pal v. Republic of India, 2011-2 SCC 490
Nothing prevented the appellant-State Government from producing the relevant *photographs* of the purported pucca pond existing at some spots.	State of Rajasthan v. Ultratech Cement Ltd. , 2022-12 Scale 606; 2022-13 SCR 1
A statement about the photograph made by any expert would not be admissible before examining the photographer.	Dr. Pankaj Kumudchandra Phadnis v. Union of India, (2018) 5 SCC 785
Photographs, tape-records of speeches [Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdas Mehra, (1976) 2 SCC 17] are documents.	Shamsher Singh Verma v. State of Haryana, 2016 15 SCC 485; Nilesh Dinkar Paradkar v. State of Maharashtra, 2011-4 SCC 143
Photo identification of an accused during the investigation, who was seen by the witness at the relevant time.	Umar Abdul Sakoor Sorathia v. Intelligence Officer, Narcotic AIR 1999 SC 2562, 2000-1 SCC 138; Rabindra Kumar Pal v. Republic of India, AIR 2011 SC 1436; 2011 2 SCC 490
Inventory, photographs and the list of samples certified by the Magistrate are admissible as primary evidence. It is a substitute for the production of physical evidence of seized contraband samples.	Nisar Ahmed Bhat, v. Union Territory of Jammu and Kashmir 2024 0 Supreme(J&K) 187
The tape record corroborated his testimony, as a *photograph* taken without the knowledge of the person photographed can become relevant and admissible so does a tape record of a conversation unnoticed by the talkers. A contemporaneous tape record of a relevant conversation is a relevant fact and is admissible under section 8 of the Evidence Act. It is res gestae.	K. K. Velusamy v. N. Palanisamy, 2011-11 SCC 275; R.M Malkani v. State of Maharastra, AIR 1973 SC 157; Yusaf Ali lsmail Nagri v. The State of Maharashtra, 1967- 3 S.C.R. 720

Nutshell – Photo and Video: Relevant and Admissibile

Audio/Video cassettes	Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdas Mehra, (1976) 2 SCC 17
Tape records of speeches	Tukaram S. Dighole v. Manikrao Shivaji Kokate, (2010) 4 SCC 329
Photo or video	Mohammed Rafiq v. Madhan, 2018-1 Mad LJ(CRI) 641; Moti Rabidas v. The State of Bihar, 2015-145 AIC 435; Vaman Narain Ghiya v. State of Rajasthan 2014-1 Raj Cri C 31; State of MP v. Shankarlal, ILR 2010 MP 717; P Rajagopal v. Inspector of police 2009-2 Mad LJ(Cri) 161; Santhosh Baccharam Patil v. State of Maharashtra, 2002 All MR (Cri)997, 2003 BCR (Cri) 120.
CD	Shamsher Singh Verma v. State of Haryana, (2016) 15 SCC 485
Photographs including photographs of tombstones and houses	Lyell v. Kennedy (No.3) (1884) 50 L.T. 730
Video recordings	State of Maharashtra v. Praful B.Desai, AIR 2003 SC 2053
Audio and video	State of Maharashtra v. Praful B.Desai, AIR 2003 SC 2053; Santhosh Madhavan @ Swami Amritha Chaithanya v. State :2014 KHC 31; Taylor v. Chief Constable Cheshire:1987(1) All.ER 225
Cassettes	Tukaram S.Dighole v. Manik Rao Shivaji Kokate (2010)4 SCC 329
Moving cinematograph	Senior v. Holdsworth, Ex parte Independant Television New Ltd. (1976) Q.B. 23)
Film	Rex v. Daye ((1908)2 K.B. 333, 340)
Floppies, CCTV footages, CDs, DVDs, Chips, Hard discs, Pen drives–	North West Airlines v. Union of India 2007 (214) ELT 178 (Bom.)

Pictorial Testimony Theory and Silent Witness Theory

Pictorial Testimony Theory – Photograph Need Not Be Proved.
Silent Witness Theory – Photograph Must Be Proved.

In Santhosh Madhavan @ Swami Amritha Chaithanya v. State (2014 Ker HC 31), these two theories governing the proof and authenticity of photographs were explained.

First, the pictorial testimony theory: It is applied when a photograph is used merely as an aid to a witness in explaining or illustrating his testimony—for example, a doctor explaining injuries with reference to a photograph, or identification of a deceased through a photograph. In such a case, the evidence of the witness will be the primary matter rather than what is depicted in the photograph; and the photographer need not be examined in court, since the photograph is admitted merely to aid a witness in explaining his testimony.
Secondly, under the silent witness theory or communication theory: It is invoked when the photograph itself constitutes substantive and probative evidence of what it depicts, speaking for itself without supporting oral testimony—for instance, an X-ray film showing a fracture, a photograph depicting the accused in a crowd holding a weapon (though the photographer did not notice him), or a photograph of the scene of occurrence of a crime. In such cases, the photographs must be proven.

Presumptions on Photographs and Videos

Section 119 of the Bharatiya Sakshya Adhiniyam (Section 114 of the Evidence Act) allows the Court to ‘presume the existence of any fact ….. regard being had to the common course of natural events‘.

A photograph or a video, by its very nature, speaks for itself. Therefore, the courts in India can commence with a presumption as to the correctness of the photograph or video, placing the onus on the opposite party to rebut that presumption by placing material on record sufficient to dislodge or shift the same.

Invoking this general presumption, the courts in India have consistently held –

‘a mere bald denial of the contents of a video recording is insufficient‘; but, ‘there should be material to show that the video clippings are doctored or morphed’.

Photographs – In many cases a Corroborative Piece; It Can be the Best Evidence also

A photograph, being a document, ordinarily requires proof through a proper witness to establish its authenticity and relevance. However, it need not invariably be proved by examining the photographer, and may be proved through any competent witness capable of speaking to the facts depicted or the circumstances of its production. Once duly admitted, a photograph may constitute primary or substantive evidence, though in many cases it is used to corroborate other evidence.

In Tomaso Bruno v. State of Uttar Pradesh, (2015) 7 SCC 178, it is held that CCTV footage can be a ‘Best Evidence‘. The court said it as under:

“Notwithstanding the fact that the burden lies upon the accused to establish the defence plea of alibi in the facts and circumstances of the case, in our view, prosecution in possession of the best evidence – CCTV footage ought to have produced the same. In our considered view, it is a fit case to draw an adverse inference against the prosecution under Section 114 (g) of the Evidence Act that the prosecution withheld the same as it would be unfavourable to them had it been produced.”

In short, a photograph or video, once duly admitted and properly proved, constitutes substantive evidence. Though in many cases it is relied upon as corroborative evidence, in an appropriate case it may, by itself, establish the fact in issue, independently and without the aid of other evidence.

Silent Witnesses Theory – Photograph /Video ‘Speaks for Itself‘

In State Represented by the Inspector of Police, Chennai v. V. P. Pandi @ Attack Pandi, 2019 -1 LW(Cri) 421; 2019-1 LW(Cri) 481; 2019-2 MLJ(Cri) 129, the Madras High Court explained the “silent witness” theory, stating as under:

“115. We may also incidentally notice the developments in the law on video and photographic evidence in the West where the “silent witness” theory is deployed to admit video and photographic evidence. The theory proceeds on the footing that photographic and video evidence are “silent witnesses” which speak for themselves. They are substantive evidence of what they portray.”

The following two foreign decisions were specifically dealt with by the High Court:

(a) State of Nevada v. Archanian, [145 P 3d 1008 (2006)]: The Supreme Court of Nevada admitted the video evidence under the silent witness theory and held as under:
- “There is no evidence suggesting that the composite videotape was inaccurate, that any relevant or exculpatory information had been deleted from it, or that the modifications made to it adversely affected or obscured the content.”
(b) Her Majesty v. Jaiyhi He, [2017 ONCJ 790,]: The Ontario Court of Justice in Canada opined to the following effect:
- The party seeking to tender a video in evidence must show two things to meet the threshold test of admissibility: (i) The video is relevant, showing the crime scene or other evidence linked to the issues at trial; and (ii) the video is authentic — that it accurately represents the events depicted.

Bald Denials are Insufficient to Discredit the Authenticity of Video Footage

The Madras High Court, in this decision (State Represented by the Inspector of Police, Chennai v. V. P. Pandi), also observed as under:

“113. It is true that the cameraman can zoom or minimize an image. It is also true that trick photography is possible. In Suo Motu taken up (PIL) WP Chief Secretary to the Government of Tamil Nadu v. The Government of Tamil Nadu and others (WP 3335 etc. of 2009) decided on 29.10.2009, a Division Bench of this Court (F.M. Ibrahim Kalifulla and R. Banumathi, JJ) held that bald denials are insufficient to discredit the authenticity of video footage. In her lead judgment, Banumathi, J (as she then was) has opined as under:
- ‘349. That a bald denial of the contents of a videotape is not adequate to doubt its authenticity; there should be material to show that the video clippings are doctored or morphed’.
The Division Bench proceeded to look into the video tape as a corroborative piece of evidence and held as under:
- ‘350. The respondents have not disputed that the video clippings filed by the petitioners relate to the occurrence. Even though video clippings filed by the petitioners do not have the running time, we have watched the videos and looked into the photos as corroborative piece of evidence’.”

In Jagjit Singh v. State of Haryana, (2006) 11 SCC 1, the conclusion of the Speaker on CDs received from TV News channels, that ‘there is no room for doubting the authenticity and accuracy of the electronic evidence produced by the petitioner’, was accepted by the Apex Court holding as under:

“The petitioners despite grant of opportunity had declined to watch the recorded interview. It is one thing to watch the interview, point out in what manner the recording was not genuine but instead of availing of that opportunity, the petitioners preferred to adopt the course of vague denial.”

In Umesh v. State of Karnataka, 2023-2 KarLJ 397, while dealing with a ‘trap case’, after laying down the importance of digital evidence, it is cautioned as under:

“Qualified and trained expert should test the samples. The report should contain the procedure adopted for testing the samples. The equipments used should be duly calibrated and updated periodically. The electronic device should be tested for editing and tampering in order to establish its genuineness and authenticity.
Digital evidence form be created for every memory card/chip used in the trap case containing the unique identification features of the memory chip/card used. The defence should be provided with a cloned copy or a mirror image of the electronic device.”

Distinct Evidentiary Position of a Section 63(4) Certificate

Once the Section 63(4) certificate accompanies the computer output (copy), the computer output becomes admissible in evidence, and it is not mandatory to examine the CCTV operator, or the person who snapped the photograph, for the purpose of its admission.

See: Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473,
Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1.

The Person Who Signed Section 63/65B Certificate Need Not Be Examined: Having regard to the special features of the photographs and videos (that is, visual depictions of facts), even if the Section 63(4) certificate is not that given either by the plaintiff or by the defendant, but by another, the photograph or video can be marked in evidence through the plaintiff or the defendant.

Unless the authenticity or correctness of the certificate issued under Section 63(4) is specifically disputed, oral evidence has no role to play in proving (for the purpose of marking) that the computer output is the exact copy of the (original) electronic record. Therefore, the photographer who issued the certificate under Section 63(4) need not be examined if the correctness of the certificate is not specifically disputed.

In Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC, our Apex Court further affirmed as under:

“50. … However, in cases where either a defective certificate is given, or in cases where such certificate has been demanded and is not given by the concerned person, the Judge conducting the trial must summon the person/persons referred to in Section 65B(4) of the Evidence Act, and require that such certificate be given by such person/persons.”

Presumption on Computer Output (copy) Admitted under Sec. 63

A computer output (copy) of a CCTV footage or video, or of a photograph captured on a mobile phone, can be admitted in evidence in place of the original — if it is produced with a certificate under Section 63(4) of the BSA.

Note: Section 63(1), BSA says about admissibility of copy — “Notwithstanding anything contained in this Adhiniyam, any information contained in an electronic record which is printed on paper, stored, recorded or copied in optical or magnetic media or semiconductor memory which is produced by a computer or any communication device or otherwise stored, recorded or copied in any electronic form (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence or any contents of the original or of any fact stated therein of which direct evidence would be admissible.”

Proof by Certificate under Section 63(4)

In view of the non-obstante clause (“Notwithstanding anything contained in this Adhiniyam”) in Section 63 of the Bharatiya Sakshya Adhiniyam, 2023, the only Mode of Proof of a computer output (copy) is the evidence through a certificate under Section 63(4).

Therefore, even in cases where formal proof of the digital photos or videos is dispensed with (for the opposite party admits it), a certificate under Section 63(4) of the BSA is necessary.

Admission and Proof of Computer Output (copy): Independent Matters

(i) Admitting a copy of a computer output (such as copy of a statement of accounts) in evidence (with a certificate under Section 63), and (ii) the formal proof thereof at the time of trial, are two distinct and independent matters.

The questions as to substantive proof — whether the computer output or copy is relevant, and how it should be proved — are not determined by Section 63 of the BSA. They are to be established independently, as in the case of any other class of documents.

The burden of Impeaching the Certificate is upon the Party who Disputes it

The presumption arising under Section 63—by which a computer output is deemed to be a document—is rebuttable and does not render the contents of the electronic record conclusive.

If such a challenge on the certificate is overruled by the court, it can draw a presumption as to the genuineness and authenticity of the photographs or videos contained in the computer output (copies).

S. 63 deals with Admissibility of computer output or copy, and not Proof

The questions as to substantive proof — whether the computer output or copy is relevant, and how it should be proved — are not determined by Section 63 of the BSA. They are to be established independently, as in the case of any other class of documents.

However, the court can draw presumptions as to the genuineness and authenticity of such photographs or videos, as stated earlier.

Once Copy Admitted by S. 63 Certificate, Oral Evidence has No Place in Marking

Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1, is an authority on the following matters –

(i) The certificate under Section 65B(4) is a condition precedent to admissibility of the computer output (copy);
(ii) The certificate is meant to replace the oral evidence of the device-handler or operator.
(iii) Once the certificate is produced, oral evidence has no place (for the purpose of marking it).

However, the person who issued the certificate (operator) has to be examined if:

the authenticity or correctness of the certificate is specifically disputed;
allegations of fabrication, manipulation, or false certification are raised;
the issuer’s control over the device/system is seriously questioned; or
the court needs clarification to assess probative value, not admissibility.

Pictorial Testimony Theory and Silent Witness Theory

Pictorial Testimony Theory — Photograph Need Not Be Proved.
Silent Witness Theory — Photograph Must Be Proved.

Photographer Need Not be examined (In pictorial testimony theory)

When a photograph is admitted merely to aid a witness in explaining his testimony, it need not be proved formally.

Photograph Must Have Been Proved (In silent witness theory)

As stated above, in silent witness theory cases, the photographs must be proved. No doubt, in the peculiar nature of a particular case, the examination of the photographer may not be insisted upon, and the photograph could be proved by another ‘proper’ witness. Formal proof of a photograph may not be necessary where the opposite party admits its genuineness or correctness.

Examination of the Photographer may not be insisted (In silent witness theory)

As stated above, in silent witness theory cases, photographs or videos are required to be proved. However, such proof need not necessarily be by way of formal proof through the examination of the photographer or the person who captured the image. Besides admission of the other side as regards the authenticity, the photographs or videos may instead be proved through a ‘proper’ witness who is competent to depose by way of general evidence regarding the factual features depicted therein, such as the identity of the persons shown, the place, the time, or the surrounding circumstances.

Note: 1. Formal proof of a photograph or copy of a video and the requirement of the certificate under Section 63(4) are two distinct and independent matters.
2. Even in cases where formal proof of the photographs or copies of videos is dispensed with, the certificate under Section 63(4) of the BSA (Section 65B of the IEA) is necessary, when a computer output (copy) of a photograph or video is produced — in view of the non-obstante clause in Section 63 of the BSA.
3. A photograph or a copy of video, admitted in evidence on the strength of a certificate under Section 63(4), stands on a distinct footing (in contradistinction to a statement-of-account) by reason of the statutory presumptions that the court can invoke, it being direct visual depictions of facts.
4. The certificate under Section 63(4) is accepted unless its correctness is specifically challenged. The oral evidence of the person who issued the certificate becomes relevant (for the purpose of admitting the document) only where the certificate itself is specifically and successfully challenged by the party who disputes its authenticity or correctness.
5. Therefore, the court is entitled to infer that a photograph or video, once duly admitted in evidence, correctly represents the scene or object as it existed at the time of recording. It is doctrinally recognised as the ‘silent witness’ theory – the document “speaks for itself”.
6. Accordingly, once a photograph or copy of a video is duly admitted in evidence, the court can act upon it (usually as a corroborative piece of evidence), on the basis of general evidence relating to the identity of the persons depicted, the place, the time, and the surrounding circumstances, without insisting upon any further primary or direct proof of the facts.
7. The presumption attached to a photograph or a video admitted in evidence being one rebuttable, the opposite party can rebut it by placing appropriate evidence to show that the photograph or video does not correctly represent the scene, object, or occurrence as it existed at the relevant point of time, or that the factual position had materially changed.

Pictorial Testimony Theory: No Enacted Law; Only Judicial Exposition

The pictorial testimony theory rests on judicial exposition rather than statutory codification. It finds only indirect support, in principle, from Section 162 (Refreshing Memory), BSA. Section 162 is to be understood as one not exhaustive in its operation.

Section 162 of the BSA reads as under:

“Refreshing memory: (1) A witness may, while under examination, refresh his memory by referring to any writing made by himself at the time of the transaction concerning which he is questioned, or so soon afterwards that the Court considers it likely that the transaction was at that time fresh in his memory:
- Provided that the witness may also refer to any such writing made by any other person, and read by the witness within the time aforesaid, if when he read it, he knew it to be correct.
(2) Whenever a witness may refresh his memory by reference to any document, he may, with the permission of the Court, refer to a copy of such document:
- Provided that the Court be satisfied that there is sufficient reason for the non-production of the original:
- Provided further that an expert may refresh his memory by reference to professional treatises.”

Definition of Evidence

According to the Section 2(1)(e) of the Bh. Sak. Act –

” ‘evidence’ means and includes–

(i) all statements including statements given electronically which the Court permits or requires to be made before it by witnesses in relation to matters of fact under inquiry and such statements are called oral evidence;

(ii) all documents including electronic or digital records produced for the inspection of the Court and such documents are called documentary evidence.”

Connected Articles:

Definition of document

Section 2(1)(d) of the Bh. Sak. Act defines ‘document’ as under:

“ (d) ‘document’ means any matter expressed or described or otherwise recorded upon any substance by means of letters, figures or marks or any other means or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter and includes electronic and digital records.

Illustrations.
(i) A writing is a document.

(ii) Words printed, lithographed or photographed are documents.

(iii) A map or plan is a document.

(iv) An inscription on a metal plate or stone is a document.

(v) A caricature is a document.

(vi) An electronic record on emails, server logs, documents on computers, laptop or smartphone, messages, websites, locational evidence and voice mail messages stored on digital devices are documents.”

‘Document’ takes in photographs of words as could be seen from the illustration.

By virtue of Section 65B of the Indian Evidence Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (computer output) shall be ‘deemed to be also a document’.

Besides the Evidence Act, the term ‘document’ has been defined in the General Clauses Act, 1897, and the Indian Penal Code, 1860.

Section 3(18), General Clauses Act defines document as under:

“Document shall include any matter written, expressed, or described upon any substances by means of letters, figures or marks, or by more than one of those means which is intended to be used, or which may be used for the purpose of recording that matter.”

Section 29, Indian Penal Code explains that the word document denotes any matter expressed or described upon any substance by means of letters, figures or marks or by more than one of those means, intended to be used, or which may be used, as evidence of that matter.

In Explanation 1, it is stated:

“It is immaterial by what means or upon what substance the letters, figures or marks are formed, or whether the evidence is intended for, or may be used in a court of justice, or not.”

Going by the definitions, ‘document ‘ includes not only all materials or substances upon which thoughts of a man are represented by writing or any other species of conventional mark or symbol, but also records of information of some sort (Santhosh Madhavan @ Swami Amritha Chaithanya v. State, 2014 KerHC 31).

In P. Gopalakrishnan v. State of Kerala, AIR 2020 SC 1, it is observed that tape records of speeches (Also in: Tukaram S. Dighole v. Manikrao Shivaji Kokate, 2010-4 SCC 329; Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra, (1976) 2 SCC 17 ) and audio/video cassettes (See: Burhanuddin Bukhari v. Brijmohan Ramdas Mehra, 1976-2 SCC 17) including compact disc (See also: Singh Verma v. State of Haryana, 2016-15 SCC 485) were “documents” under Section 3 of the 1872 Act, which stand on no different footing than photographs and were held admissible in evidence. It is by now well established that the electronic record produced for the inspection of the Court is documentary evidence under Section 3 of the Evidence Act (Anwar PV v. PK Basheer, 2014-10 SCC 473).

Yusaf Ali lsmail Nagri v. The State of Maharashtra, 1967- 3 S.C.R. 720

“The process of tape-recording offers an accurate method of storing and later reproducing sounds. The imprint on the magnetic tape is the direct effect of the relevant sounds. Like a photograph of a relevant incident, a contemporaneous tape record of a relevant conversation is a relevant fact and is admissible under s. 7 of the Indian Evidence Act.”

R.M Malkani v. State of Maharastra, AIR 1973 SC 157

In R.M Malkani v. State of Maharastra, AIR 1973 SC 157, summarised this case (Yusaf Ali lsmail Nagri) as under:

“In Nagree’s case (Yusaf Ali lsmail Nagri v. The State of Maharashtra, 1967- 3 S.C.R. 720) the appellant offered bribe to Sheikh a Municipal Clerk. Sheikh informed the Police. The Police laid a trap. Sheikh called Nagree at the residence. The Police kept a tape recorder concealed in another room. The tape was kept in the custody of the police inspector Sheikh gave evidence of the talk. The tape record corroborated his testimony, as a photograph taken without the knowledge of the person photographed can become relevant and admissible so does a tape record of a conversation unnoticed by the talkers. A contemporaneous tape record of a relevant conversation is a relevant fact and is admissible under section 8 of the Evidence Act. It is res gestae. It is also comparable to a photograph of a relevant incident. The tape recorded conversation is therefore a relevant fact and is admissible under section 7 of the Evidence Act.”

After summarising Nagree’s case (Yusaf Ali lsmail Nagri v. The State of Maharashtra, 1967- 3 S.C.R. 720), the Supreme Court said as under:

“The Court will take care in two directions in admitting such evidence. First, the Court will find out that it is genuine and free from tampering or mutilation. Secondly, the Court may also secures scrupulous conduct and behaviour on behalf of the Police. The reason is that the Police Officer is more likely to behave properly if improperly obtained evidence is liable to be viewed with care and caution by the Judge. In every case the position of the accused, the nature of the investigation and the gravity of the offence must be judged in the light of the material facts and the Surrounding circumstances.”

K. K. Velusamy v. N. Palanisamy, 2011-11 SCC 275:

7. The amended definition of “evidence” in section 3 of the Evidence Act, 1872 read with the definition of “electronic record” in section 2(t) of the Information Technology Act 2000, includes a compact disc containing an electronic record of a conversation. Section 8 of Evidence Act provides that the conduct of any party, or of any agent to any party, to any suit, in reference to such suit, or in reference to any fact in issue therein or relevant thereto, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto. In R.M Malkani v. State of Maharastra, AIR 1973 SC 157, this court made it clear that electronically recorded conversation is admissible in evidence, if the conversation is relevant to the matter in issue and the voice is identified and the accuracy of the recorded conversation is proved by eliminating the possibility of erasure, addition or manipulation. This Court further held that a contemporaneous electronic recording of a relevant conversation is a relevant fact comparable to a photograph of a relevant incident and is admissible as evidence under Section 8 of the Act. There is therefore no doubt that such electronic record can be received as evidence.”

The Kerala High Court (KT Thomas, J.), in Ponnappan v. State of Kerala, ILR 1994(3) Ker 370, in appeal, confirmed the conviction holding that Chacko was the person who was killed. It was on a photo identification – Pictorial testimony. The Court held as under:

“PW I identified the person in M.O.9 photo as the person who was killed. There is no doubt that M.O.9 is the photograph of Chacko, the film representative. It was contended that since P. W.I himself admitted that he had not observed the features or facial peculiarities of the person when he was inside the car, the identification made by him with the help of the photo is not of any use. We are of the view that even without noticing any translatable mark or feature of a person it would be possible to identify him later.”

Here the photo had not been proved through the photographer.

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*Nature of Association.*	*Vesting of Management and Legal Ownership.*	*Vesting of actual/ ultimate ownership*	*Whether perma-nent or can it be put an end to*
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Temple (private)	-do-	-do-	-do-
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Order VII Rule 14(3) and Order VIII Rule 1A C.P.C Confer Power to Receive Documents if ‘Good Cause‘ is shown for the Late Production of the Documents

Adv. Saji Koduvath, Advocate, Kottayam.

Order VII* Rule 14(3)* and Order VIII Rule 1A C.P.C Confer Power to Receive Documents if ‘Good Cause‘ is shown for the Late Production of the Documents