YADAV, J. - (1.) THIS Criminal Revision Petition is directed against the order of the learned Additional Sessions Judge, Nohar Dist. Sri Ganganagar dated 10. 12. 1983 passed in Cr. Case No. 32 of 1983 State vs. Ipderchand and Another.
(2.) IN the instant case, a preliminary objection was raised by the learned Public Prosecutor Mr. H. R. Panwar appearing on behalf of the State, to the effect that the impugned order is interlocutory order, therefore, no criminal Revision is maintainable. There is a Substance in the argument of Mr. H. R. Panwar, learned Public Prosecutor. During course of argument, Mr. Suresh Kumbhat, learned counsel for the petitioner has moved an application praying therein that the instant revision petition may be converted into a proceeding under Sec. 482, Cr. P. C. He further prayed that in case, the present revision petition is not converted into a proceedings under Sec. 482, Cr. P. C, a grave injustice will be caused to be accused-petitioner, which will amount to abuse of process of the court. I am satisfied with the argument of Mr. Kumbhat, learned counsel for the petitioner and allow his application converting the present Criminal Revision into a proceedings under Sec 482, Cr. P. C. In my humble opinion, refusing to convert the present criminal revision under Sec. 482, Cr. P. C. can result in a meritorious matter being thrown out at the very threshhold defeating the cause of justice. It is held that where substantial justice is pitted against technical consideration, it is substantial justice which deserves to be preferred. It is well to remember that judiciary is respected not on account of its power to legalize, injustice on technical consideration but because it is capable of removing injustice. The facts necessary to be noticed for disposal of the present proceedings, are that a first information report was lodged against the petitioner on 17. 7. 82 alleging that accused- petitioner Inder Chand has burnt his wife Smt. Rajo on 24. 6. 82. It is also' alleged that PW 5 Chhaganlal arrived at the scene of occurrence and he had seen the occurrence. It is borned out from the record that in order to prove the aforesaid occurrence, the prosecution produced PW 5 Chhagan Lal on 10. 12. 83 and on that day, learned counsel for the accused- petitioner moved an application praying therein that he may be allowed to place and to play before the court tape recorded conversation between PW 5 Chhagan Lal and Babu Lal, which is relevant in the present case. In the said application, it is further prayed that tape recorded conversation may be marked and be exhibited.
(3.) IT is urged before me by the learned counsel for the petitioner that the learned Additional Sessions Judge, Nohar has rejected the aforesaid application by his order dated 10. 12. 83, which is per se illegal, and if the impugned order is allowed to exist, a serious prejudice will be caused to the petitioner. According to the learned counsel for the petitioner, tape recorded evidence itself is a primary and direct evidence, which is admissible under Sec. 7, 8 and 155 (3) read with Sec. 146 of the Indian Evidence Act. According to learned counsel for the petitioner, the statement made by PW 5 Chhaganlal recorded in the tape recorder produced before the Court, ought to have been treated as previous statement of the witness, which can be used not only to corroborate the evidence given by the witness in court but also to contradict his deposition. Learned counsel for the petitioner submitted that if tape- recorded statement of PW 5 Chhaganlal is brought on record, the petitioner can demonstrate before the court that PW 5 Chhaganlal is not impartial and a truthful witness. Accordingly to him, the tape-recorded statement can be used by the court to test the veracity of the witness and also to impeach his credibility. From the order impugned, it is apparent that PW 5 Chhaganlal refused to hear his tape-recorded conversation with Babulal before the Court, merely on the basis that he has not made such statement within his knowledge, therefore, he was not prepared to listen tape-recorded conversation between him and Babulal. Instead of asking Chhaganlal to reply 'yes' or 'no' and to verify such conversation between Babulal and Chhaganlal, learned Additional Sessions Judge has disallowed the question put by the defence counsel. It is brought to my notice that even PW 5 - Chhaganlal has admitted about his conversation with Babulal, but yet he refused to hear his tape-recorded statement. It seems to me that learned Additional Sessions Judge considered himself to be helpless in such situation and dis-allowed the aforesaid question. In support of the aforesaid argument, learned counsel for the petitioner has placed reliance before me on the following decisions : - R. M. Malkani vs. State of Maharashtres (1), Pratap Singh v. State of Punjab (2), N. Sri Rama Reddy v. V. V. Giri (3) and Dial Singh Narain Singh vs. Rajpal Jagannath and Others ;