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2019 DIGILAW 2211 (RAJ)

Sanjay Singh v. State of Rajasthan

2019-08-19

PANKAJ BHANDARI

body2019
JUDGMENT : Pankaj Bhandari, J. 1. Petitioner has preferred this criminal misc. petition aggrieved by order dated 24.08.2018 passed by Metropolitan Magistrate No. 34, Chaksu, District Jaipur City, Jaipur, whereby application filed by the petitioner for taking secondary evidence was dismissed. 2. It is contended by counsel for the petitioner that photocopy of the Challan was produced before the Court below and permission was sought to lead the secondary evidence but the same was rejected by the Court below on the ground that the documents do not fall within the category of documents shown under Section 63 as Secondary Evidence. 3. Counsel for the petitioner has placed reliance on "Rakesh Mohindra vs. Anita Beri & Ors. (2016) 16 SCC 483". 4. I have considered the contentions and have perused the impugned order. 5. Secondary evidence is defined under Sub-Section (2) of Section 63 of Evidence Act. It is the case of the petitioner that the photocopy falls under Sub-Section (2) of Section 63 of the Evidence Act. Sub-Section (2) of Section 63 of Evidence Act reads as under:- "copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies" 6. A photocopy does not insure the accuracy of the copy. A photocopy may be made even from a photocopy hence photocopy cannot be considered to be one made which in themselves insure the accuracy of the copy, a photocopy does not fall within Sub-Section (2) of Section 63 of the Evidence Act and cannot be treated as secondary evidence. 7. In Rakesh Mohindra vs. Anita Beri & Ors. (Supra), it was clearly mentioned by the Apex Court that if a party wishes to lead secondary evidence, the Court is obliged to examine the probative value of the document produced in the Court or their contents and decide the question of admissibility of a document as secondary evidence. At the same time, the party has to lay down the factual foundation to establish the right to give secondary evidence where the original document cannot be produced. 8. From perusal of the impugned order, it is revealed that the case of the petitioner before the Court below was that it is difficult to trace the document as there was flooding of water in the office. 8. From perusal of the impugned order, it is revealed that the case of the petitioner before the Court below was that it is difficult to trace the document as there was flooding of water in the office. Petitioner has not stated in his application as to when the document was lost, it is merely mentioned that it is difficult to trace the original document. It is also not mentioned that the photostat copies were made from the original. Since document produced before the Court below is a photocopy and the accuracy of the photocopy cannot be ensured, hence, permitting the petitioner to lead secondary evidence would result in grave injustice to the accused. 9. In view of the above, impugned order does not call for any interference, no ground is made out for entertaining the Criminal Misc. Petition, the same is dismissed. 10. Stay application stands disposed.