Madhya Pradesh High Court
Shalendra Bhadoriya vs The State Of Madhya Pradesh Thr on 25 September, 2017
1
MCRC.10317/2017
Shalendra Bhadoriya and Ors. Vs State of M.P.
25.09.2017
Shri Sunil Jain, counsel for the petitioner.
Shri K.L. Gupta, special public prosecutor for respondent
-Lokayukta.
The inherent powers of this Court are invoked u/s 482 Cr.P.C. to assail the interlocutory order 19.01.2017 passed in S.S.T No. 14/2013 by which an application u/s 61 & 65 of the Evidence Act filed by the prosecution for producing secondary evidence of certain documents has been allowed.
Learned counsel for the petitioner submits that the reasons assigned in the application u/s 61 & 65 of the Evidence Act were not sufficient to enable the trial court to exercise its power and allow secondary evidence to be adduced.
A bare perusal of the application dated 16.10.2015 indicates that the reason assigned by the prosecution is that despite exercise of due diligence and making all out efforts , the original document could not be traced out and therefore based upon the letter of the Collector dated 15.10.2015 the secondary evidence of the said document was brought on record and the charge-sheet was filed.
It is also evident from record that after filing of charge-sheet an application u/s 91 Cr.P.C. was moved by petitioner/ accused seeking production the originals of the said documents which was declined by the order dated 25.01.2016 which attained finality for failure of the petitioners to challenge the same further. Whereafter the prosecution has now moved an application dated 16.10.2015 u/s 61 & 65 of the Evidence Act allowing them to adduce secondary evidence in regard to said documents by assigning reason as aforesaid.
Reasons assigned in the application appears to be in line with the pre-requisites for allowing a party to produce secondary evidence. For 2 MCRC.10317/2017 convenience and ready reference Section 65 of the Evidence Act is reproduced below:-
65. Cases in which secondary evidence relating to documents may be given.--Secondary evidence may be given of the existence, condition, or contents of a document in the following cases:--
(a) When the original is shown or appears to be in the possession or power--
of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it;
(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;
(d) when the original is of such a nature as not to be easily movable;
(e) when the original is a public document within the meaning of section 74;
(f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in India to be given in evidence;
(g) when the originals consists of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection.
In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible.
In case (b), the written admission is admissible. In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible.
In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents.
More so, petitioner has not been able to point out any prejudice that would be caused by the impugned interlocutory order dated 3 MCRC.10317/2017 19.01.2017. It is always open to the accused to cross-examine the prosecution witness who comes forward to prove the said document and also to assail the genuineness and contents of the said document.
Learned counsel for the petitioner has placed reliance on the decision of the Apex Court in the case of J.Yashoda Vs. K. Shobha Rani reported in (2007) 5 SCC 730 which lays down that for want of proper explanation in the absence of primary evidence, secondary evidence can be entertained.
There is no dispute in regard to the law laid down by the Apex Court but in the present case it is evident from record that prosecution has given cogent reason for producing secondary evidence and therefore, pre-requisities of Section 65(c) are satisfied. Thus the said decision is of no assistance to the petitioner / accused.
Accordingly, present petition stands dismissed in limine.
(Sheel Nagu) (Ashok Kumar Joshi) sarathe Judge Judge