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2006 DIGILAW 652 (PAT)

Chumman Singh v. State Of Bihar

2006-07-28

INDU PRABHA SINGH

body2006
Judgment Indu Prabha Singh, J. 1. This is an application filed u/s. 482 of the Code of Criminal Procedure, 1973(in short the Code). It is directed against the order dated 3.6.2006 passed by Addl. Sessions Judge, IX, Muzaffarpur in S.T. No. 866 of 2005 by which the learned court below has admitted the carbon copies of the medical certificates as primary evidence and taken has (sic) the same into evidence. 2. From the facts of this case it would appear that before (sic) the learned court below the present petitioners who figured as accused had prayed that the original medical certificates may be called for alongwith an agreement with which for the present I am not concerned . The carbon copies of the medical certificates (Annexures 4 and 4/A) were on record. On behalf of the petitioners it was objected that the carbon copies were secondary piece of evidence and they should not be admitted unless the neccessary legal requirements are fulfilled. The learned court below has rejected this prayer of the petitioners am treating the carbon copies as primary evidence admitted the same into evidence. It is against this order that the present application has been filed. 3. The only question for consideration before me is whether the carbon copy of a document is a primary evidence of the same and whether it can be admitted into evidence without calling for the original and without complying with the legal provisions of sec. 65 of the Indian Evidence Act(in short the Act). 4. From the impugned order it appears that the learned court below has relied on explanation 2 of sec. 62 of the Act and on this ground he has treated the medical certificates as primary evidence. Leaned counsel for the petitioners has challenged this finding of the learned court below on the ground that they are secondary pieces of evidence which could not be admitted unless the requirement for the proof of secondary evidence are complied with. This is the moot question to be decided in this case. 5. On behalf of the petitioners a detailed written notes of argument has been filed in which mainly that emphasis has been put that these document (Annexures 4 am 4/A) are forged documents and they should not be admitted into evidence without proof of the original and without the examination of the Police Officer. 5. On behalf of the petitioners a detailed written notes of argument has been filed in which mainly that emphasis has been put that these document (Annexures 4 am 4/A) are forged documents and they should not be admitted into evidence without proof of the original and without the examination of the Police Officer. It has also been contended that the Doctor also should have been examined before admitted Annexures 4 and 4/A into evidence. According to them they are false and fabricated documents which should not be relied upon. 6. I have perused the impugned order. The Learned Addl. Sessions Judge has held that the carbon copies of the medical certificates are admissible in evidence inasmuch as they have to be treated as primary evidence on the strength of explanation 2 to sec. 62 of the Act. As against it the petitioners have contended that as per this explanation where all the copies are from a common original they can not be treated to be a primary evidence or contents of the original. 7. In support of this contention learned Counsel for the petitioners has placed reliance on the case of Rameshwar Singh and Ors. V/s. State of Bihar 1986 PLJR (N.O.C.) 29. This is a Bench decision of this Court in which the carbon copy of the F.I.R. and copies of supporting evidence in tie station diary produced before the trial court were held to be in-admissible u/s. 65 of the Act since the original F.I.R, was not produced before to court. It was further held that in absence of proof of loss of original document a carbon copy can neither be relied nor can be taken into consideration and is thus liable to be ignored. On the strength of this decision the learned Counsel for the petitioners has submitted that since in the present case also the original documents were not produced their carbon copies can not be admitted into evidence in terms of explanation 2 to sec. 62 of the Act. In this decision reliance has been place on the case of the Roman Catholid Mission and Ors. V/s. The State of Madras and Anr. -. 62 of the Act. In this decision reliance has been place on the case of the Roman Catholid Mission and Ors. V/s. The State of Madras and Anr. -. From paragraph 8 of this decision it would appear that the Learned District Judge had taken into consideration the certified copies of certain lease deeds which were already filed in another case and it was held by the Hon ble Supreme Court in this paragraph as follows: These documents undoubtedly would have thrown light upon the matter but they were not admissible because they were only copies. The originals were not produced at any time nor was any foundation laid for the establishment of the right to give secondary evidence. The High Court rejected them and it was plainly right in so deciding . 8. From this decision it would appear that the matter under the consideration before the Hon ble Supreme Court was not with respect to the admissibility of the carbon copies but the admissibility of only the certified copies. A carbon copy is entirely different from a certified copy and hence this decision will not help to decide the question whether the carbon copy is or is not admissible in evidence in absence of the original since this matter was not under consideration of the Hon ble Supreme Court in this case. From this it would also appear that in the case of Rameshwar Singh(supra.) reliance has wrongly been placed on this decision. 9. So far as the certified copies are concerned the law is well settled that, if relevant they can be admitted into-evidence after complying with necessary Legal pro-visions. In the case of Shri Ishwar Lal Kedia and Ors. V/s. Shri Mahabir Prasad @ Mahabir Prasad Kedia and Ors. 1986 PLJR 1135 it has been so held by this Court in which it was observed that if primary evidence is lost, secondary evidence will certainly be taken into evidence after sufficient foundation of the original document having disappeared has been laid as required by sec. 65 of the Act. 10. The matter is, however , set at rest by the Hon ble Supreme Court in the case of Prithi Chand V/s. State of Himachal Pradesh -. Relying on Sec. 32 of the Act and explanation 2 to sec. 65 of the Act. 10. The matter is, however , set at rest by the Hon ble Supreme Court in the case of Prithi Chand V/s. State of Himachal Pradesh -. Relying on Sec. 32 of the Act and explanation 2 to sec. 62 of the Act the Hon ble Supreme Court has held that carbon copy made by one uniform process of certificate of Doctor given in discharge of professional duty is admissible in evidence under Explanation 2 to sec. 62 as also under the provisions of 32 of the Act if the court is of the view that the attendance of the Doctor could not be procured without an amount of delay. This decision sets at rest, the law on the subject by holding that the carbon copy of a document made by the uniform process is a primary evidence and not the secondary evidence. 11. So far as sec. 65 of the Act is concerned it deals with the procedure provided for giving secondary evidence in a case. As noticed above the carbon copy is not a secondary evidence. On the other hand as per Explanation 2 to Sec. 62 of the Act it is the primary evidence of the original and, therefore, admissible in evidence as such. They can not he said to be copies of a common original. In this view of the matter the carbon copy of the medical certificates (Annexures 4 and 4/A) are the primary evidence and act the secondary evidence and the learned lower court has rightly so held in the impugned order. 12. In view of these discussions it is clear that there is no merit in this application. It is, accordingly, rejected.