Research › Search › Judgment

Rajasthan High Court · body

2018 DIGILAW 708 (RAJ)

BANWARI LAL v. STATE OF RAJASTHAN

2018-03-07

VIJAY BISHNOI

body2018
JUDGMENT : Vijay Bishnoi, J. This criminal misc. petition under Section 482 Cr.P.C., 1973 is preferred on behalf of the petitioners being aggrieved with the order dated 24.10.2017 passed by the Additional Sessions Judge No.1, Barmer (for short the revisional court hereinafter) in Criminal Revision No.50/17 whereby, the revision petition filed by the petitioner has been dismissed. The said revision petition was preferred by the petitioner being aggrieved with the order dated 18.09.2017 passed by the Additional Chief Judicial Magistrate, Barmer (for short the trial court hereinafter) in case No.948/2000 whereby, it has allowed the application preferred on behalf of the prosecution under section 65 of the Indian Evidence Act and permitted the prosecution witness No.14 - Rakesh Sharma to produce the photo copies of the mark sheets pertaining to the petitioners. 2. Learned counsel for the petitioners has submitted that before moving an application under section 65 of the Indian Evidence Act the prosecution did not serve any notice upon the petitioners as required under section 66 of the Indian Evidence Act. It is submitted that in the absence of giving any notice to the petitioners as per section 66 of the Indian Evidence Act, the action of the trial court of allowing the prosecution to produce photo state of the mark sheets pertaining to the petitioners as secondary evidence under section 65 of the Indian Evidence Act is illegal. 3. Learned counsel for the petitioners has submitted that the revisional court has also not taken into consideration this aspect of the matter while dismissing the revision petition filed by the petitioners. 4. Heard learned counsel for the petitioners and perused the impugned orders. 5. The trial court in the impugned order dated 18.09.2017 has specifically observed that copy of the application under section 65 of the Indian Evidence Act was served upon the petitioners, however, no reply to the said application was filed on their behalf claiming that the original mark sheets are not in their possession. Even during the course of the arguments before the trial court no such plea was raised on behalf of the petitioners that the originals of the mark sheets are not in their possession. 6. Even during the course of the arguments before the trial court no such plea was raised on behalf of the petitioners that the originals of the mark sheets are not in their possession. 6. It is also to be noticed that prosecution has produced a copy of the letter dated 19.11.1999 written by the Vikas Adhikari, Panchayat Samit, Shiv to Police Station Shiv, Barmer informing that both the original mark sheets were returned to the petitioners. 7. Though before the revisional court, in the revision petition it is averred on behalf of the petitioners that the original mark sheets are lying with the Zila Parishad during the course of the arguments before the revisional court no such documentary evidence has been produced to prove the fact that the original mark sheets of the petitioners are lying with the Zila Parishad, Barmer. 8. Section 66 of the Indian Evidence Act provides that before giving the secondary evidence under section 65 of the Indian Evidence Act notice is required to be given to a person, who is in possession of the originals of the document. However, in the present case in the application under section 65 of the Indian Evidence Act, the prosecution has specifically contended that the originals are with the petitioners, however, despite receipt of copy of the said application, it is not contended on behalf of the petitioners, at any point of time, that the original mark sheet are not in their possession. 9. This Court is of the opinion that both the courts below have not committed any illegality in observing that the application filed by the prosecution under section 65 of the Indian Evidence Act, containing the avernment that the originals are with the petitioners, is fulfilling the conditions of giving notice under section 66 of the Indian Evidence Act. 10. In view of the above discussion, I do not find any illegality in the orders impugned. 11. Hence, the criminal misc. petition fails and is hereby dismissed. 12. Stay petition also stands dismissed.