By this application under Article 227 of the Constitution of India, the applicant - one of the defence witnesses has prayed for the following reliefs :

"A. To allow this petition;

B. To issue appropriate writ, order or direction directing that the documentary evidence produced at Sr.Nos.1 to 9 with the List at Exh.877 in Sessions Case No.141 of 2014 by the petitioner i.e. Defence Witness No.5 Sejal B. Talloli, pending before the Ld. 2nd Additional Sessions Judge, Surat be exhibited.

C. To quash and set aside Exhibit 883 order in Sessions Case No.141 of 2014 pending in the court of learned 2nd Additional Sessions Judge, Surat.

D. To pass such other and further order/s as deemed fit, just and proper by this Hon'ble Court."

The case put up by the applicant, in her own words as pleaded in her application, is as under :

3.1 That an FIR being CR No.I-31 of 2013 dated 6.10.2013 came to be registered before Jahangirpura Police Station, Surat, for the offences under Sections 376, 377, 354, 357, 342, 346, 323, 143, 147, 148, 149, 504, 506(2), 508, 212, 153, 114 and 120(B) of the Indian Penal Code 1860.

3.2 That after the completion of investigation, charge sheet came to be filed. That the offence being sessions triable, the case was committed to Ld. 2nd Additional District and Sessions Judge, Surat and which came to be registered as Sessions Case No.141 of 2014.

3.3 That thereafter present petitioner on 5.12.2017 deposed in her examination in chief before the learned court below about the documentary evidence which are at Exhibit 877/9 (being Audio Recorder cum Pendrive), 877/4 (being Compact Disc i.e. CD), and 877/5 (being Typed Transcript of CD). That the ld. Judge was pleased to observe that in absence of the certificate under Section 65B of the IEA, the abovementioned evidence could not be exhibited.

3.4 Thereafter the examination in chief was adjourned to 6.12.2017 due to completion of court hours. That on 6.12.2017 during the course of examination in chief, the said petitioner moved another application along with certificate u/s 65B of IEA being Exh.883 before the Ld. Judge and prayed before the Hon'ble Court that the said documents produced at Sr.No.1 to 9 along with the list at exhibit 877 are touching the root cause of the case and are therefore required to be exhibited in order to do substantial justice to the accused and not deprive the accused of their right to a fair trial.

3.5 That the Ld. Sessions Judge was pleased to reject the application under Exh.883 vide the impugned order dated 6.12.2017.

Thus, it appears that the trial Court, by its impugned order, declined to admit the Compact Disc (CD) in evidence and give a tentative exhibit as, according to the trial Court, the same is in the form of secondary evidence, and in the absence of primary evidence, the same would not be admissible.

Let me first look into the application filed by the applicant herein Exh.883 in the Sessions Case No.141 of 2014. The application reads as under :

"IN THE COURT OF THE 2nd ADDL. DISTRICT AND SESSIONS JUDGE, SURAT SESSIONS CASE NO.141/2014

COMPLAINANT : THE STATE OF GUJARAT

VERSUS

ACCUSED : NARAYAN SAI AND ORS.

It is humbly submitted on behalf of D.W. No.5 that :

1. That my examination in chief is in progress. Yesterday, I deposed about the documentary evidences which are at exh.877/9, 877/4 and 877/5 without a certificate U/s. 65-B of the Evidence Act.

2. That, although I am an educated lady aware of technical issues, I am not aware about provisions of law. At mark 877/9 in the list under mark 877, I produced a device which being an Audio Recorder cum pen drive, which seems like an ordinary pen drive. Since, I wanted to trace conspirators against Asharam Bapu, Narayan Sai and their Ashrams along with my husband, I had to use the said device in several Sting Operations.

3. Yesterday I had submitted my depositions on oath and also deposed about the documents along-with exh.877/9, 877/4 and 877/5 and after hearing which, this Hon'ble Court was pleased