August 18, 2021 5:33:13 am
The Gujarat High Court on Tuesday quashed a Surat magistrate court order rejecting an application by BJP MLA Purnesh Modi to add four witnesses for examination during the trial of criminal defamation case filed by him against Wayanad Congress MP Rahul Gandhi.
Gujarat HC has now remitted the application back to the trial court for fresh decision.
The complainant MLA in his defamation suit, alleged that Rahul defamed the Modi community when he compared Prime Minister Modi to economic offenders Nirav Modi and Lalit Modi and allegedly said in a public meeting in Kollar in Karnataka on April 13, 2019, “Why all chors (thieves) have the surname Modi”.
Purnesh had produced electronic records of Rahul’s speech in the form of pendrive and three CDs, containing the alleged defamatory remarks.
During the course of evidence of the complainant, Rahul had objected to the contents of the electronic record and after recording the objections, the trial court had taken the material tentatively on its record, subject to proof by the complainant that the contents of the electronic data comply with the Indian Evidence Act.
In order to prove that the contents of the alleged remarks contained in the devices are authentic, the trial court issued summons to two witnesses, as called for by Punesh.
This included testimony of the witnesses D. Shambhu Bhat, joint chief electoral officer of Bengaluru and one P M Raghunath, working president of Akhil Bhartiya Tailik Sahu Mahasabha and who had originally received the CD of the speech from the election officer.
However, based on the evidence of the two witnesses, Purnesh could not prove the authenticity and source of the electronic record and accordingly, another application was filed by Purnesh before the magistrate court to add four more witnesses, who are essential to be examined to prove the contents of the electronic record as per the Evidence Act.
This application however came to be rejected by the magistrate court in January primarily on the ground that Purnesh had examined an adequate number of witnesses to prove his case.
The four additional witnesses sought to be examined included district election officer of Kollar through the video surveillance team in-charge and head Shivaswamy M, videographer of the video surveillance team whose name is unknown to Purnesh, Rajendra Simha, special correspondent of TV9 Karnataka and Ganesh Yaji, a Karnataka BJP leader who had requested for the video from the chief electoral office.
Purnesh, through his lawyer Harshit Tolia, submitted before the HC that since a certificate was not issued attesting to the authenticity of the electronic evidence, the trial court ought to have considered this aspect while rejecting the application and ought to have held that the four witnesses cited in the application as essential to prove the authenticity of the electronic records, should have been considered for a “just decision of the case.”
The court of Justice Ilesh Vora, while disposing the plea, recorded in its order, “The dismissal of the application…by the Court below is not in consonance with the object and scope, as prescribed under Section 311 of the Cr.P.C and dictum of law settled by the Apex Court…Hence, the impugned order dated 05.01.2021 passed by learned Chief Judicial Magistrate, Surat,…is hereby quashed. The matter is remitted back to the trial Court for fresh decision on the application…filed under Section 311 of the Code… It is made clear that, this Court has not considered the contentions raised by the respective parties on merits.”
The court further observed that the objective of Section 311 of the CrPC is that, there may not be failure of justice on account of mistake of either party in bringing valuable evidence on record and that the court has to apply its judicial mind while exercising its discretion keeping in mind the concept of fair trial.
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