Dr. Dinesh vs State Of Madhya Pradesh

The applicant has invoked the extraordinary jurisdiction of this Court under Section 482 of Code of Criminal Procedure, 1973 (for short 'The Code'),

against the order dated 13/12/2016, passed by the Second Additional Sessions Judge, Barwani in Criminal Case No.90/2016, whereby the order passed

by the Judicial Magistrate First Class, Barwani in Criminal Case No.211/2014 has been affirmed, by which the application filed by the

respondent/State under Section 65 of the Indian Evidence Act, 1872 (for short 'the Act') has been allowed.

The facts in short leading to filing of this application are that the respondent/State has filed a criminal complaint under Section 28 of Pre-

Conception and Pre-Natal Diagnostic Techniques Act, 1994 (in brevity 'PC & PNDT Act') against the applicant alleging that on 12/01/2012 the

respondent/State conducted inspection in the premises of the applicant and found that he has committed violation of provisions of 'PC & PNDT Act'.

In this regard inspection report/panchnama was prepared. The trial Court framed charges against the applicant and the matter was fixed for

recording of the evidence of the prosecution/respondent. During the trial, respondent/State filed an application under Section 65 of 'the Act' stating

that Tehsildar Susri Janki Yadav has prepared the inspection report/panchnama and she has sent the original panchnama to Collector, Barwani and

other officers, therefore, in the record, the original panchnama was not found, hence, a prayer for adducing secondary evidence of the said documents

was made. The applicant opposed the application by contending that photocopy of the document is not a copy of original document and there was

no mention that through which source the photocopy was prepared. However, the said application was allowed by the Judicial Magistrate First

Class. Being aggrieved with the aforesaid order, the applicant preferred a revision petition before the Second Additional Sessions Judge, Barwani,

who dismissed the same vide order dated 13/12/2016, which is the subject matter to challenge before this Court.

Learned counsel for the applicant has submitted that the Courts below have committed error by without recording the satisfaction regarding loss of

original document permitted the respondent/State to lead secondary evidence. They have also not considered the fact that photocopy is neither the

primary evidence nor secondary, therefore, the parties are required to prove when and where the photocopy was taken and whether it is the same and

exact copy of the original one. In the present case, respondent has failed to prove that the photocopy was taken through mechanical process and it

is exact and same copy of the original one. In the absence of the aforesaid averments, the Courts below have wrongly allowed the application of

the respondent/State.

Learned counsel for the respondent/State opposes the prayer by submitting that the original panchnama is missing, therefore, the respondent is

unable to prove this document by leading secondary evidence and the Courts below have rightly allowed the application filed under Section 65 of 'the

Act'.

The seminal question that arises for consideration is whether the trial Court has justified in allowing the application for grant of permission to lead

secondary evidence by respondent/State. In this context, we may refer with profit to section 63 and 65 of 'the Act', which runs as under:

 63. Secondary  evidence.â€"Secondary evidence means and includes

(1) Certified copies given under the provisions hereinafter contained1;1;

(2) Copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such

copies;

(3) Copies made from or compared with the original;

(4) Counterparts of documents as against the parties who did not execute them;

(5) Oral accounts of the contents of a document given by some person who has himself seen it.

Illustrations

Cases in which secondary evidence relating to documents may be given.â€"Secondary evidence may be given of the existence, condition, or

contents of a document in the following cases:â€

(a) When the original is shown or appears to be in the possession or powerâ€" 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 1[India] to be given in evidence;

[India] to be given in evidence2;

(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.

From the impugned order, it transpires that the original panchnama prepared on 12/01/2012 was sent to the S.D.M, Collector, Barwani and other

officers, but there is no material available on record to substantiate that the document in question is not available in the office of S.D.M or Collector of

Barwani. There is nothing on record to show that the respondent/State has taken any steps to obtain the original panchanama from the office of the

S.D.M or Collector, Barwani, but, they refused to provide the same by contending that the file is missing in the office or original panchnama is not

found in the file of aforesaid offices, therefore, nothing is on record to prove that the original panchnama is not available at all.  The copy which

has been filed in tendering secondary evidence was neither certified copy nor true copy of original panchnama. The document in question is

photocopy of the panchnama, therefore, neither, it is primary nor secondary evidence. The respondent/State further failed to explain that when and

where the photocopy was taken and it is the same and exact copy of the original one. In this context, this Court relies on the decision rendered in

the case of Smt. J. Yashoda Vs. Smt. K. Shobha Rani, reported in AIR 2007 SC 1721, in which the Hon'ble supreme Court has held in para 7, 8 &

9 as under:

“7. Secondary evidence, as a general rule is admissible only in the absence of primary evidence. If the original itself is found to be inadmissible

through failure of the party, who files it to prove it to be valid, the same party is not entitled to introduce secondary evidence of its contents.

Essentially, secondary evidence is an evidence which may be given in the absence of that better evidence which law requires to be given first,

when a proper explanation of its absence is given. The definition in Section 63 is exhaustive as the Section declares that secondary evidence ""means

and includes"" and then follow the five kinds of secondary evidence.

The rule which is the most universal, namely that the best evidence the nature of the case will admit shall be produced, decides this objection that

rule only means that, so long as the higher or superior evidence is within your possession or may be reached by you, you shall give no inferior proof in

relation to it. Section 65 deals with the proof of the contents of the documents tendered in evidence. In order to enable a party to produce secondary

evidence it is necessary for the party to prove existence and execution of the original document. Under Section 64, documents are to be provided by

primary evidence. Section 65, however permits secondary evidence to be given of the existence, condition or contents of documents under the

circumstances mentioned. The conditions laid down in the said Section must be fulfilled before secondary evidence can be admitted. Secondary

evidence of the contents of a document cannot be admitted without non-production of the original being first accounted for in such a manner as to

bring it within one or other of the cases provided for in the Section. In Ashok Dulichand v. Madahavlal Dube and Another [1975(4) SCC 664], it was

inter alia held as follows :

After hearing the learned counsel for the parties, we are of the opinion that the order of the High Court in this respect calls for no interference.

According to clause (a) of Section 65 of Indian Evidence Act, Secondary evidence may be given of the existence, condition or contents of a document

when the original is shown or appears to be in 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 of any person legally bound to produce it, and when, after the notice mentioned in Section

66 such person does not produce it. Clauses (b) to (g) of Section 65 specify some other contingencies wherein secondary evidence relating to a

document may be given, but we are not concerned with those clauses as it is the common case of the parties that the present case is not covered by

those clauses. In order to bring his case within the purview of clause (a) of Section 65, the appellant filed applications on July 4, 1973, before

respondent No. 1 was examined as a witness, praying that the said respondent be ordered to produce the original manuscript of which, according to

the appellant, he had filed Photostat copy. Prayer was also made by the appellant that in case respondent no. 1 denied that the said manuscript had

been written by him, the photostat copy might be got examined from a handwriting expert. The appellant also filed affidavit in support of his

applications. It was however, nowhere stated in the affidavit that the original document of which the Photostat copy had been filed by the appellant

was in the possession of Respondent No. 1. There was also no other material on the record to indicate the original document was in the possession of

respondent no.1. The appellant further failed to explain as to what were the circumstances under which the Photostat copy was prepared and who

was in possession of the original document at the time its photograph was taken. Respondent No. 1 in his affidavit denied being in possession appeared

to the High Court to be not above suspicion. In view of all the circumstances, the High Court to be not above suspicion. In view of all the

circumstances, the High Court came to the conclusion that no foundation had been laid by the appellant for leading secondary evidence in the shape of

the Photostat copy. We find no infirmity in the above order of the High Court as might justify interference by this Court.""â€​

In the case of Ratanlal Vs. Kishanlal reported in 2012(1) MPLJ 120, this Court has held as under :

“ 12 According to me, the photocopy is neither a primary nor secondary evidence and in this regard decision of this Court Ramesh Verma and

others etc Vs. Smt. Lajesh Saxena and others etc AIR 1998 MP 46 may be seen. Apart from this even if it is stretched to the extent to bring the

photocpy of the will Ex.-P/1 within the sphere of secondary evidence, the plaintiff was required to satisfy the ingredients to section 65 of the Evidence

Act which speaks about the secondary evidence. The plaintiff was further required to examine the person who took out the photocopy of the

original. This is very much essential because, it is a matter of common knowledge that by putting another writing written on a separate paper if that

paper is kept upon the original document and photocopy is taken out, the said photo copy cannot be said to be a true photocopy of the original

documentâ€​.

This Court in case of Aneeta Vs. Saraswati 2012 (4) MPLJ, 561 has observed in Para 12 as under:

( 12 ) So far as the applicability of Clause (2) of Section 63 of Evidence Act placed reliance by the learned counsel for the petitioner is concerned,

according to me, it can be said that by some mechanical process a photocopy of original receipt was obtained, but, there cannot be any surety of its

correctness and accuracy in absence of sup- porting material on record. Again in this regard there is no averment in the application that the photocopy

which has been obtained by mechanical process was never tampered and it ensures its accuracy. Even if accurate photocopy is obtained by a

mechanical process, it is a matter of common parlance that after inserting some words on a document which is already a photocopy and by

interpolating the same, another photocopy of the said interpolated photocopy may be obtained and thus the accuracy of photocopy is always

surrounded by dark clouds of doubt. In the present case since there is no averment in the application under Section 65 that photocopy was compared

with the original and it is an accurate photocopy of the original and further by not filing any affidavit of person who obtained the said photocopy is on

record, it is difficult to hold the hallmark and authenticity and accuracy of the photocopy.

After obtaining factual matrix which is tested on the touchstone of the aforesaid principles of law, the document which has been sought to be

tendered as secondary evidence is neither a certified copy nor a true copy indicating endorsement. Â There is no averment in the application filed

under Section 65 that photocopy of the panchnama is compared with the original and it is the accurate photocopy of the original. In the considered

opinion of this Court, the document filed by the respondent/State does not meet with the requirement of Section 65 of 'the Act'. In the absence of

any proof and requirement of law not being satisfied, I (Dr. Dinesh vs. The State of Madhya Pradesh) am of the considered opinion that the order

of the Courts below are not according to the provisions of law. The trial Court has committed error while allowing the application filed by the

respondent under Section 65 of 'the Act'.

With the aforesaid observations, the present application filed by the applicant under Section 482 of 'the Code' is allowed and the order dated

27/09/2016 as well as the order dated 13/12/2016 are set aside. The application preferred by respondent under Section 65 of 'the Act' is hereby

dismissed.

Let a copy of this order be sent to the concerned Courts for information and necessary compliance.

Certified copy as per Rules.