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Madhya Pradesh High Court · body

2012 DIGILAW 80 (MP)

Inderprakash Bhargava v. State of M. P.

2012-01-17

M.C.GARG

body2012
Judgment 1. The short point involved in this petition is as to whether Trial Court was justified in having permitted the accused-respondent to lead secondary evidence for proving the CD with Article J, which was in possession of the accused, by way of secondary evidence, as provided under Section 65 of the Evidence Act read with Section 102 of the Evidence Act. The order was passed on January 30, 2011 and has been assailed by the petitioner, who is the complainant and whose son was murdered, which is the subject matter of trial, wherein the respondent/accused is facing prosecution. 2. According to the learned Counsel appearing for the respondent, this petition is not maintainable as the petitioner who is the complainant is a third party and has no locus standi to file such a petition. 3. However, on behalf of the petitioner it has been contended that if an illegal order is passed, the petitioner being effected with such an order is entitled to invoke the inherent powers of this Court under Section 482, Cr.PC. This Court in view of Section 483, Cr.PC is also entitled to look into and correct the mistakes by exercising powers of continuous superintendence. 4. It would be appropriate to note that before filing of the application for secondary evidence, which has been allowed, vide the impugned order, the respondent had also filed and application under Section 91 of Cr.PC on June 22, 2009. By the said application, the respondent wanted production of record of video clipping of the incident in question and it was prayed that the concerned authorities, including the police be directed to produce the video clipping dated 26-12-2008 and 27-12-2008 as well as video clipping shown from 22-12-2008 to 26-12-2008, besides that a sketch was also required to be produced. There was no reference of any CD produced by the accused alongwith the said application. This application was opposed by the prosecution and vide order dated 2-7-2009, it was dismissed. 5. The said order was assailed by the respondent/accused before this Court by filing a Criminal Revision No. 902/2009. There was no reference of any CD produced by the accused alongwith the said application. This application was opposed by the prosecution and vide order dated 2-7-2009, it was dismissed. 5. The said order was assailed by the respondent/accused before this Court by filing a Criminal Revision No. 902/2009. This Court vide detailed order passed on 26-8-2009, dismissed the revision petition, but made the following observations :- "From perusal of the order, it appears that no illegality has been committed by the learned Tiial Court in dismissing the application as the petitioner is free to call the record at the stage of defence, in view of this petition filed by the petitioner is dismissed. However, in the circumstances, it is directed that the respondent if having any record as suggested by the petitioner shall not destroy the same till the disposal of the trial." 6. The respondent on 24-9-2009 moved an application without mentioning any provisions therein alongwith the CD claiming that to be a video footage as shown by SR Cable Operators pertaining to the incident in question and copy thereof was supplied to the prosecution and was also seen by the Court on Laptop in presence of the parties. During the course of exhibition of that CD, the contents of both the CDs, i.e., the one produced by the respondent/accused and one supplied to the prosecution were found to be identical. However, the Court dismissed that application and CD was returned to the respondent/accused. The said order for the sake of reference is reproduced here below :- xxx xxx xxx 7. The respondent/accused then moved an application afresh, which is the subject matter of the present proceedings on 17-1-2011. By this application, the respondent/accused has sought permission to lead secondary evidence by pleading that since the records of the cable operators have been destroyed, he may be permitted to lead secondary evidence on the basis of the CD, which was available with him. 8. On the aforesaid application, the impugned order has been passed by the Sessions Judge. As per the said order, the prayer made by the respondent/accused was allowed. 8. On the aforesaid application, the impugned order has been passed by the Sessions Judge. As per the said order, the prayer made by the respondent/accused was allowed. Relevant portion of that order, which may have a bearing on the present order being passed by this Court is reproduced here below :- "Earlier accused/applicant moved an application dated 22-6-2009, which was filed under section 91, Cr.PC, praying the footage shown by the cable, S.R. Channel and Siti Channel be summoned before they are destroyed. This application has been rejected vide order dated 2-7-2009. The revisional order passed by the Hon'ble High Court of Madhya Pradesh, Bench Indore in Criminal Revision No. 902/2009. dated 26-8-2009 touches both i.e., sketch issued by Police Station, Madhavnagar and the video footage. The revision petition has been dismissed with the observation that the respondent/State through Police Station, Madhavnagar and the video footage. The revision petition has been dismissed with the observation that the respondent State through Police Station, Madhavnagar is directed not to destroy, till disposal of the trial, such record as is suggested by the petitioner and also that if the respondent/State through Police Station, Madhavnagar is having any record as suggested by the petitioner. During the arguments it has not been disputed that applicant produced the CD along with the application, copy of which has been given to the State. Both were compared and found to be identical. Vikas (D.W. 3) had deposed that on 27-12-2008 news was telecast on the channel regarding Rajeev Bhargava. This witness also admitted formatting of the system of the cable due to virus. Neeta Ramani (D.W. 4), the news reader on oath admitted reading the news as she could hear and see on watching the CD (Article J). Formatting of the system means that the original program, which was telecast is no more in existence. In the light of Section 63 (C) of the Evidence Act, CD (Article J) appears to be representation of the program, which has been formatted. Prior to formatting defence has been persistently and forcefully trying to bring CD on record copy of which has been made available to prosecution. If this situation is looked at in the light of observations of Hon'ble High Court it was duty of the prosecution to get the record preserved. At least Police Station, Madhavnagar was under an obligation to follow this lead by making further investigation. If this situation is looked at in the light of observations of Hon'ble High Court it was duty of the prosecution to get the record preserved. At least Police Station, Madhavnagar was under an obligation to follow this lead by making further investigation. State failed to copy with the direction of the Hon'ble High Court rather allowed the time to roll by. Special Public Prosecutor argued that for further investigation permission of the Court was required. The Court is not in agreement with this argument. Section 173 (8), Cr.PC does not make permission by the Court for further investigation a condition precedent. On the contrary, further investigation should have been done to call the bluff of the defence. In the light of Section 65 (C) of Evidence Act, CD (Article J) appears to be the secondary evidence of the programme, which has been telecast and has been formatted. Learned Special Public Prosecutor for the State opposed the application under reconsideration the ground that amended Section 65 (B) of Evidence Act creates a bar hence the application cannot be allowed. Section 65 (B), Evidence Act applies only when original is in existence. It is on record that both the systems that of police and of the cable operator have been formatted. Learned Special Public Prosecutor in support of his arguments and reply to the application has relied on the judgment AIR 2002 Punjab and Haryana High Court, P.K. Gupta Vs. Vrinder Sharma. This authority instead of lending help to the non-applicant. State helps the applicant/accused due to formatting of the systems. Learned Special Public Prosecutor has also relied on the judgment in Writ Petition No. 447/2005, dated 7-3-2006, Haji Mohd. Islam and another Vs. AsgarAli and another. Because of formatting of the system and facts being entirely different this order lends no help to the non-applicant/State. Learned Special Public Prosecutor has also relied on the judgment 2000 (2) MPLJ Note 114, Sukhia @ Sushma Vs. Gambhira. It also does not lend any help to the non-applicant because the facts are different. Due to formatting the original could not be produced similarly the reliance placed on judgment passed by Hon'ble Supreme Court in Civil Appeal No. 206/2007, dated 19-4-2007 does not help the non-applicant because the facts are diametrically opposite and different. Gambhira. It also does not lend any help to the non-applicant because the facts are different. Due to formatting the original could not be produced similarly the reliance placed on judgment passed by Hon'ble Supreme Court in Civil Appeal No. 206/2007, dated 19-4-2007 does not help the non-applicant because the facts are diametrically opposite and different. In light of Section 102 of Evidence Act, a duty is cast on the non-applicant to allege and prove that CD (Article J), is tampered one. No such ground has been taken by the non-applicant in light of observations of Hon'ble High Court in Criminal Revision No. 902/2009. If subsequent developments are looked at then the application under consideration1 deserves to be granted, hence granted. The applicant/accused is permitted to produce in evidence CD (Article J) as secondary evidence of the original video footage, program of which has been formatted." 9. According to the learned Counsel for the petitioner, this order should not have been passed by the Trial Court. It is submitted that the order is illegal and thus requires to be set aside in exercise of the powers vested in this Court under Section 482, Cr.PC read with Section 483, Cr.PC. 10. After making some arguments, Counsel agrees that in case the petitioner is permitted to assist the prosecution and to request the Public Prosecutor to take all the legal objections to the admissibility of the evidence, which is to be led in terms of the order and raise arguments at the time of final hearing, his client would be satisfied. 11. It is well settled that if light comes from any side, which may assist the Court must be permitted so as to do complete justice to the party who is claiming prosecution where the accused has been threatened of imprisonment of life or even suffer punishment of hanging till death. In such a case, if accused, has any evidence available, he should certainly bring it to the notice of the Court. The question of admissibility of such evidence certainly depends upon legal provisions as are enshrined in the Evidence Act and other legal statutes even such as IT Act. The Court can look into this aspect and admissibility of evidence in the form of CD in terms of the settled law. The question of admissibility of such evidence certainly depends upon legal provisions as are enshrined in the Evidence Act and other legal statutes even such as IT Act. The Court can look into this aspect and admissibility of evidence in the form of CD in terms of the settled law. The Public Prosecutor will take help of the complainant party for the aforesaid purpose and take all legal submissions, which are available to the prosecution in this case. 12. I have been told that a Special Public Prosecutor has been appointed on the request of the complainant. The complainant can always meet the Special Public Prosecutor and can assist him for the purpose of effectively conducting the prosecution by the Public Prosecutor, who may address before the Court concerned. 13. The Court will also permit assistance by the complainant to the Special Public Prosecutor so that justice is done. The petition is, therefore dismissed, but with the aforesaid observations. The interim orders, if any, are vacated. 14. A copy of this order be sent to the Trial Court and also be given dasti to both the parties. Record be sent forthwith through a special messenger.