In this context Section 296 of the Code can be read:
(1) The evidence of any person whose evidence is of a formal character may be given by affidavit and may, subject to all just exceptions, be read in evidence in any inquiry, trial or other proceeding under this Code.
(2) The Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any such person as to the facts contained in his affidavits.
The normal mode of giving evidence is by examining the witness in Court. But that course involves, quite often, spending of time of the witness, the trouble to reach the court and wait till he is called by the Court, besides all the strain in answering questions and cross-questions in open court. It also involves costs which on many occasions are not small. Should a person be troubled by compelling him to go to the court and depose if the evidence which he is to give is purely of a formal nature? The enabling provision of Section 296 is thus a departure from the usual mode of giving evidence. The object of providing such an exception is to help the court to gain the time and cost, besides relieving the witness of his troubles, when all that the said witness has to say in court relates only to some formal points.
It depends upon the facts of the case. Quite often different steps adopted by police officers during the investigation might relate to formalities prescribed by law. Evidence, if necessary on those formalities, should normally be tendered by affidavits and not by examining all such policemen in court. If any party to a lis wishes to examine the deponent of the affidavit it is open to him to make an application before the Court that he requires the deponent to be examined or cross-examined in Court. This is provided in sub-section (2) of Section 296 of the Code. When any such application is made it is the duty of the Court to call such person to the court for the purpose of being examined.
In Shankaria vs. State of Rajasthan (1978) 4 SCC 453 this Court accepted the evidence tendered on affidavit filed by a policeman who had taken specimen finger-prints of the accused in the case. The contention advanced in this Court that the said affidavit should not be relied on was repelled by the three- judge bench in the afore-cited decision.
In the present case, the facts stated in the affidavit were purely of a formal character. At any rate, even the defence could not dispute that aspect because no request or motion was made on behalf of the accused to summon the deponents of those affidavits to be examined in Court. In such a situation it was quite improper that the High Court used such a premise for setting aside the conviction and sentence passed on the respondent, that too in revisional proceedings.
Added to the above, learned Single Judge observed that the contents of the said affidavit were not put to the accused during the examination under Section 313 of the Code. Learned Single judge, on that score also, over-looked the formal nature of the evidence. The substantive evidence relating to the sample is the result of the chemical examination. There is no grievance for the accused that the trial court did not put that aspect to the accused when he was questioned under Section 313 of the Code. If so it was too pedantic an insistence that every item of evidence, even of a formal nature, should also form part of the questions under Section 313 of the Code.
That apart, respondent failed to show that there was any failure of justice on account of the omission to put a question concerning such formal evidence when he was examined under Section 313 of the code. No objection was raised in the trial court on the ground of such omission. No ground was taken up in the appellate court on such ground. If any appellate court or revisional court comes across that the trial court had not put any question to an accused even if it is of a vital nature, such omission alone should not result in setting aside the conviction and sentence as an inevitable consequence. Effort should be made to undo or correct the lapse. If it is not possible to correct it by any means the court should then consider the impact of the lapse on the overall aspect of the case. After keeping that particular item of evidence aside, if the remaining evidence is sufficient to bring home the guilt of the accused, the lapse does not matter much, and can be sidelined justifiably. But if the lapse is so vital as would affect the entire case, the appellate or revisional court can endeavour to see whether it could be rectified.[ Supreme Court of India in State Of Punjab vs Naib Din , Decided on 28 September, 2001]