Judgment :- 1. The wife of the accused died on 11.5.1998 under suspicious circumstance, by setting fire to herself and a case in Cr.No.261/96 was registered for an offence punishable under Section 174 of Cr.P.C. by the Inspector of Police, Karrimadu, Madurai. On conclusion of the investigation a final report has been filed stating that it is an accidental fire. The father of the deceased moved a petition before this Court and a direction has been issued to the petitioner herein to re-investigate the case. Accordingly, the case was investigated and the offence was modified into Section 304-B and 498-A, I.P.C. and a final report was filed on 11.7.1999. The learned Magistrate returned the said final report stating that the same should be filed with original of the FIR and dying declaration, which was missing. Aggrieved against that, the matter was taken up to the Court of Sessions. The learned Principal Sessions Judge, Madurai also confirmed the order passed by the learned Magistrate. Aggrieved against the orders passed by the Courts below, the present petition has been filed. 2. The learned Government Advocate submits that initially the FIR and dying declaration were sent to the Tahsildar for conducting the enquiry and it was missing in his custody and the same could not be received from him further it is contended by the learned Government Advocate that the Xerox copies of the originals are available in the case diary. When the original documents are missing and when it is not available, the prosecution may produce the secondary evidence and the learned Magistrate can take it along 'with other contemporaneous materials to take cognizance of the offence. The learned Government Advocate relied on the case in Aher Rama Gova and others v. State of Gujarat, 1980 SCC (Cri.) 106, wherein it has been held as follows: “2. …….. It is true that the original dying declaration was not produced before the Court but from the evidence, it is clear that the original has lost and was not available. The Magistrate himself deposed on oath that he had given the original dying declaration to the Head Constable where the Head Constable had said that he had made a copy of the same and given it back to the Magistrate. At any rate, it was clearly proved that the original dying declaration was not available. The Magistrate himself deposed on oath that he had given the original dying declaration to the Head Constable where the Head Constable had said that he had made a copy of the same and given it back to the Magistrate. At any rate, it was clearly proved that the original dying declaration was not available. In these circumstances the prosecution was entitled to give secondary evidence which consisted of the statement of the Magistrate as also of the Head Constable who had made a copy from the original and testified that the copy was a correct one.” The learned Government also relied on the case in Prithi Chand v. State of Himachal Pradesh, 1989 SCC (Cri.) 206 and contended that corban copy also constituted primary evidence under Explanation 2 of Section 62. 3. The accused has personally appeared before this Court and submitted that the occurrence took place during 1998 and the children are staying with him. He further submitted that the defacto complainant is also staying with him and he may not be interested in pursuing the prosecution. 4. I have perused the materials available on record and heard the rival contentions. In view of the facts and circumstances of the case, the learned Judicial Magistrate No. V, Madurai is directed to receive the final report filed by the petitioner along with the Xerox copies of the FIR and dying declaration. He may take cognizance of the case if it is otherwise in order and proceed further in accordance with law. 5. With the above observation, this Criminal Original Petition is disposed of.