section 91 Cr.Pc: source of document
Respected Experts, Opposite party filed criminal case u/s. 494 & 114 on the basis of 'hearsay' and 'few public documents'. No concrete proof is on record. Now I challenged process order issued against me in revisional court but since last 1 year no hearing was taken. Meanwhile Magistrate court is moving. Can I invoke section 91 Cr.Pc to ask source of information on affidavit. I have been advised that 91 Cr.Pc is only for production of documents and summoned to witness and therefore can't ask source of info. My say is asking source of info on affidavit is also a kind of 'production of document'. Kindly guide me.
Answer framed by a Lawfarm Researcher, Apoorwa Shankar Iyer:
In this case, the burden of proof regarding S. 494 and S. 114 of Indian Penal Code, 1860 (IPC) charged against you, lies on the opposition party. Keeping in mind S.101 of the Indian Evidence Act, 1872 (Evidence Act), in order to get a judgment in their favor, the opposition party is bound to prove the existence of the fact that you can be held liable under the above mentioned two provisions of IPC; hence the burden of proof can be said to lie on the opposition party. S. 102 of the Evidence Act also implies that the burden of proof lies on the opposition party in this case, as with no evidence to substantiate his claim regarding your liability, it is he who would fail the proceedings.
Now, as it is established that it is indeed the opposition party which is bound by the principle of burden of proof, it is important to make sure that the proof presented by the party is admissible as an evidence in Indian Courts. As per S. 3 of the Indian Evidence Act, 1872, admissible evidence includes only two types of evidences, i) Oral Evidences, and ii) Documents. Oral evidence refers to all statements that the court permits or requires to be made before it by the witnesses. Oral evidence needs to be direct. The same has been upheld by the Supreme Court, whereby Hon'ble Justice J.M. Panchal observed that `hearsay' evidence depends on the truthfulness and competence of some other person. The sayings and doings of a third person are, as a rule, irrelevant, so that no proof of them can be admitted. Every act done or spoken which is relevant on any ground must be proved by someone who saw it with his own eyes and heard it with his own ears. Hence, it is clear that the case filed by the opposition party based on 'hearsay' has no ground and cannot be admitted in the learned court. Now comes the question of ‘public documents’, the second kind of evidence based on which the opposition party has filed the case against you. Only certified copies of public documents are admitted as evidence in Indian courts. As per S. 76 and S.77 of the Evidence Act, only if the public documents presented by the opposition party are certified copies provided by the respective public officers and clearly state that they are the true copies of such public documents, can they be admitted as evidence in the Indian courts of law. You cannot invoke S. 91 of the Code of Criminal Procedure, 1973 (Cr.PC) to ask source of information in affidavit. Affidavit refers to a written or printed declaration or statement of facts, made voluntarily, and confirmed by the oath or affirmation of the party making it, taken before an officer having authority to administer such oath. Hence, though as per Schedule I Order XIX of Civil Procedure Code, 1902, the Indian courts have the power to determine whether an already created affidavit can be used as evidence in the court of law or not, they do not have the power to order the formation of an affidavit. Moreover, S. 91 of Cr.PC deals with summons to produce documents or other things for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court. In this case, the two aspects of the public documents which are essential for the purpose of the proceeding of this case are-
i) Whether the certified copies of the public documents are presented by the opposition party or not and,
ii) If certified copies are presented, whether the contents of the document are relevant or not.
The source of information has no deciding role to play in this trial or proceeding and hence, cannot be considered to be a part of ‘production of document’ in this context. As stated by you, there exists no concrete document or record to prove your liability under S. 494 and S. 114 of IPC, so, it is highly probable that the 'public documents' used as the basis of this case by your opposition party are either not certified or not relevant enough to substantiate the claim against your liability. Hence, case will be decided by the Hon’ble Magistrate Court based on the documents presented by the opposition party which will be examined keeping in mind the above mentioned provisions (S.76 and S. 77 of the Indian Evidence Act, 1872)
 Kalyan Kumar Gogoi vs Ashutosh Agnihotri & Anr, CIVIL APPEAL NO. 4820 OF 2007
 S. 74 of Indian Evidence Act, 1872; Available at: https://indiankanoon.org/doc/1227984/
 Available at: https://www.nls.ac.in/lib/bareacts/civil/cpc/cpco19.html
The answer is simple section 91 only deals with production and summons further as u want the source of information your lawyer will cross examine the witness at the time of evidence and if it is a hearsay evidence then it cannot be relied upon and you will be acquitted of the charges.
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