Allahabad High Court
Radha Mohan Dwivedi vs State Of U.P. And Another on 25 February, 2025
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2025:AHC:26592 Reserved Court No. - 73 Case :- APPLICATION U/S 482 No. - 46459 of 2023 Applicant :- Radha Mohan Dwivedi Opposite Party :- State of U.P. and Another Counsel for Applicant :- Aditya Bhushan Singhal Counsel for Opposite Party :- G.A.,Sanjay Kumar Yadav Hon'ble Raj Beer Singh,J.
1. Supplementary affidavit filed by learned counsel for the applicant, is taken on record.
2. Heard Sri Kamal Krishna, learned Senior Advocate, assisted by Sri Aditya Bhushan Singhal, learned counsel for the applicant and Sri Gyan Prakash, learned Dy. Solicitor General of India, assisted by Sri Sanjay Kumar Yadav, learned counsel for CBI and perused the record.
3. This application under section - 482 Cr.P.C. has been preferred against order dated 11.08.2023, passed by the Additional Sessions Judge, Court No. 7, Muzaffarnagar in Special Case No. 02/2004 (State Vs. Radha Mohan & Others), whereby the application filed by the C.B.I. / prosecution seeking permission to prove certain documents (photo-copies) by way of secondary evidence, has been allowed.
4. Learned Senior Advocate appearing for applicant submitted that impugned order is against law and thus, liable to be set aside. The Central Bureau of Investigation (hereinafter referred as C.B.I.) has filed application before the trial court, wherein it was specifically stated that after completion of investigation by C.B.I., the charge-sheet with original documents was filed in the court of Special Magistrate, C.B.I. Court, Dehradun on 25.03.1996 and thus, it is apparent that C.B.I. has filed original documents and in such circumstances, no permission can be granted to prove those documents viz photocopies by way of secondary evidence. Referring to provisions of Section - 65 Evidence Act and facts of the matter, it was submitted that impugned order is against facts and law and thus, liable to be set aside.
5. Learned Dy. Solicitor General appearing for the C.B.I. has opposed the application and submitted that initially the charge-sheet was filed by the C.B.I. on 25.03.1996 in the court of Special Magistrate, Dehradun. On 21.05.1997, the case was transferred from that court to Special Judge C.B.I., Lucknow in pursuance to the order of this Court. Thereafter, on 22.04.2004, the said case was transferred from that court to Muzaffarnagar and in transit of those transfers, certain original documents have gone missing. It was further submitted that the documents sought to be proved by secondary evidence mainly consist of the correspondence between various authorities. The Trial court has considered entire facts and position of law and allowed the application of C.B.I. vide impugned order dated 11.08.2023. Learned Dy. Solicitor General has relied upon case of Bipin Shantilal Panchal Vs. State of Gujarat & Anr. AIR 2001 SC 1158.
6. I have considered the rival submissions and perused the record including pleadings of the parties.
7. Perusal of record shows that applicant is facing trial in the aforesaid case. During pendency of the case, the C.B.I. has filed application before the trial court alleging that original documents filed with charge-sheet have gone missing and sought permission to prove those documents viz photocopies thereof by way of secondary evidence. That application has been allowed by the Trial court vide order dated 11.08.2023.
8. Before proceeding further, it would be pertinent to quote the provisions of Section - 65 Evidence Act, which read as under :-
"65. 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] [[[Cf. the Bankers'Books Evidence Act, 1891 (18 of 1891), Section 4.]], to be given in evidence;
(g) When the originals consist 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 documents is admissible.
In case (b), the written admission is admissible.
In case (e) or (f), a certified copy of 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."
9. Thus, it is apparent that secondary evidence can be led in the circumstances enshrined in above referred provision. In case of Bipin Shantilal Panchal (supra), Hon'ble Apex Court held as under :-
''It is an archaic practice that during the evidence collecting stage, whenever any objection is raised regarding admissibility of any material in evidence the court does not proceed further without passing order on such objection. But the fall out of the above practice is this: Suppose the trial court, in a case, upholds a particular objection and excludes the material from being admitted in evidence and then proceeds with the trial and disposes of the case finally. If the appellate or revisional court, when the same question is re-canvassed, could take a different view on the admissibility of that material in such cases the appellate court would be deprived of the benefit of that evidence, because that was not put on record by the trial court. In such a situation the higher court may have to send the case back to the trial court for recording that evidence and then to dispose of the case afresh. Why should the trial prolong like that unnecessarily on account of practices created by ourselves. Such practices, when realised through the course of long period to be hindrances which impede steady and swift progress of trial proceedings, must be recast or re-moulded to give way for better substitutes which would help acceleration of trial proceedings.
When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence taking stage regarding the admissibility of any material or item of oral evidence the trial court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the court finds at the final stage that the objection so raised is sustainable the judge or magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. (However, we make it clear that if the objection relates to deficiency of stamp duty of a document the court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed.) The above procedure, if followed, will have two advantages. First is that the time in the trial court, during evidence taking stage, would not be wasted on account of raising such objections and the court can continue to examine the witnesses. The witnesses need not wait for long hours, if not days. Second is that the superior court, when the same objection is re-canvassed and reconsidered in appeal or revision against the final judgment of the trial court, can determine the correctness of the view taken by the trial court regarding that objection, without bothering to remit the case to the trial court again for fresh disposal. We may also point out that this measure would not cause any prejudice to the parties to the litigation and would not add to their misery or expenses.
We, therefore, make the above as a procedure to be followed by the trial courts whenever an objection is raised regarding the admissibility of any material or any item of oral evidence.''
10. Thus, whenever an objection is raised during evidence taking stage regarding the admissibility of any material the trial court can make a note of such objection and mark the objected document tentatively as an exhibit subject to such objections, which have to be decided at the stage of final judgment. If the court finds at the final stage that the objection so raised is sustainable the judge or magistrate can keep such evidence excluded from consideration.
11. In the instant matter, the case of prosecution / C.B.I. is that after completion of investigation by C.B.I., charge sheet with original documents was filed in the court of Special Magistrate, C.B.I., Dehradun on 25.03.1996 but later on said case was transferred to the court of Special Judge C.B.I., Lucknow and from there, it was transferred to Session Court, Muzaffarnagar and in course of transit some original documents have gone missing. It appears that no list or details of such documents, which have gone missing, was mentioned in application filed by the C.B.I. before the Trial Court. However in supplementary counter affidavit filed before this court, the C.B.I. has provided list of the documents, which are proposed to be proved by way of secondary evidence. It is well settled that so long as an original document is in existence and available the same has to be proved by primary evidence and it is only in the conditions enumerated in Section - 65 Evidence Act, where secondary evidence can be allowed. As noticed earlier, in the application moved by C.B.I. before the trial Court only a general assertion was made that original documents filed along with charge-sheet have gone missing and the same are not traceable. No list or any other detail of those documents was filed before the trial court. It was also not clarified that when and from where the original documents have gone missing. In view of these facts of matter it appears that the trial court has failed to consider the matter in correct perspective and committed error by granting a blanket permission to the C.B.I. / prosecution to lead secondary evidence in respect of documents, of which no detail was provided to the Trial Court. When a document is to be proved by way of secondary evidence, the matter has to be tested at touchstone of provisions of Section - 65 Evidence Act. The blanket permission to the C.B.I. to prove uncertain and unspecified documents (photocopies) by way of secondary is not in accordance with law. Keeping in view of aforesaid case law, the proper course would be that when C.B.I. proceeds to prove any of the document by way of secondary evidence, the trial court has to apply test laid down in provisions of Section - 65 Evidence Act and if any objection is raised regarding admissibility of such document, the trial court can make a note of such objection and mark the objected document tentatively as an exhibit subject to such objections to be decided at the stage of final judgment. If the court finds at the final stage that the objection so raised is sustainable the judge or magistrate can keep such evidence excluded from consideration.
12. In view of aforesaid, the impugned order is set aside. The matter is remanded back to the learned Trial court to pass an order on the application of C.B.I. afresh in accordance with law, by affording opportunity of hearing to both the parties. The C.B.I. would be at liberty to supply list of documents, which are sought to be proved by way of secondary evidence, before the Trial court.
13. The application under section - 482 Cr.P.C. is disposed of in above terms.
Order Date :- 25.2.2025 S Rawat