Sanction Order For Prosecution A Public Document U/S 74(1) (iii) Of Indian Evidence Act : Punjab And Haryana High Court

The Bench of Justice Arvind Singh Sangwan observed thus as it set aside an order passed by ACJM, Bhiwani (Haryana) summoning the then-District Magistrate, Bhiwani to appear as a witness to formally prove a sanction order passed by him.

The case in brief

An FIR was registered against the accused under Section 25 of the Arms Act in a Police Station in District Bhiwani on charges of keeping in possession a country-made pistol of .315 bore, along with 8 live cartridges without having any permit or license.

Since it is a requirement under the Arms Act that before prosecuting the accused in such a matter, a sanction for prosecution should be obtained from the concerned District Magistrate, who is the competent authority, therefore, in the instant matter too, the sanction for prosecution was taken from the District Magistrate.

The said sanction order was attached along with the report submitted under Section 173(2) Cr.P.C. and the Reader to the District Magistrate, Bhiwani was cited as a witness in the list of witnesses so that the said sanction order can be formally proved by the Reader of the District Magistrate.

However, without there being any application by the respondent-accused or any request by the State, the ACJM, Bhiwani suo motu ordered that instead of Reader to the District Magistrate, the DM himself be added the list of witnessed and be summoned to prove the sanction order.

Challenging this order, the State moved to the High Court and argued that the sanction order is a public document under Section 74(1)(iii) of the Evidence Act and therefore, it can be proved by the Reader to District Magistrate, being a public document as per Section 78 of the Evidence Act.

After hearing learned counsel for the parties, the Court found merit in the petition for the following reasons: -

• Neither there was any application by the accused nor by the State and, therefore, the Trial Court was not justified in suo motu substituting witness No.9-Reader to the District Magistrate, Bhiwani with District Magistrate, Bhiwani himself.
• The Reader to District Magistrate, Bhiwani was cited as a witness only to prove the sanction granted by the District Magistrate, Bhiwani, being a public document. Since the Reader will bring the original record for the perusal of the Court as well as for the defence counsel, who will have a right to cross-examine this witness for the reasoning given in the order and material available on record forming basis of granting sanction there is no justification in summoning the District Magistrate himself.
• Even otherwise the sanction order is a public document under Section 74(1) (iii) of the Indian Evidence Act and the certified copy prepared under Section 76/77 of the Evidence Act, is admissible in evidence.

In view of the above, this petition was allowed and the impugned orders dated 31.10.2017 and 21.11.2017 passed by the ACJM, Bhiwani were set aside. The trial court was asked to proceed further by summoning witness No.9, i.e. Reader to the District Magistrate, Bhiwani for recording the evidence