Compliance with Section 65B(4) of the Indian Evidence Act is unnecessary if the original document itself is produced as established in the case of Arjun Pandit (supra).

ORDER :

1. By way of this petition, the petitioner invoking extraordinary jurisdiction of this Court under Article 226 and 227 of the Constitution of India read with Section 482 of the Cr.P.C, 1973, seeks to quash and set aside impugned order dated 07.09.2021 passed by the learned 3rd Additional Sessions Judge, Gandhinagar, below Exh 499, in Sessions Case No. 34 of 2014, whereby, the application of the petitioner to permit her to produce 3 original video cassettes, dated 13.12.1988, 21.10.1991 and 1996 which were initially recorded by Sadhak Motiben Sevaram Pariyani, wherein, Dr. Nourm (resident of Canada) and other foreign lady had given a speech in English which was translated in Gujarati language by witness no.31, Ishwarbhai Naranji Naik, who had given his opinion in one religious discourse held at Surat, which video cassettes are necessary to confront and examine the witness Ishwarbhai Naik. The application Exh. 499 rejected by the trial Court vide its order dated 27.09.2021.

2. Aggrieved with the impugned order, present petition has been filed.

3. This Court has heard learned counsel Mr. P.P. Majmudar and learned APP Mrs. Krina Calla for the respondent State.

4. Brief facts giving rise to present petition is that, an FIR being CR.No. I.218 of 2013 dated 06.10.2013, came to be registered with Chandkheda Police Station, Gandhinagar against the petitioner and others for the offence punishable under Sections 120, 175, 179, 201, 232, 342, 346, 357, 376 and 377 of IPC. Pursuant to the FIR, charge-sheet came to be filed and case was committed to the sessions Court. During the trial, prosecution has examined PW-31, Ishwarbhai Naik. During the examination of the witness, petitioner herein moved an application Exh. 340, to prove and establish the opinion of the witness alleged to have been given, which had been recorded in 3 video cassettes along with its transcript with a prayer to dispense with the necessity to produce the certificate as provide under Section 65B of the Indian Evidence Act, which came to be rejected vide order dated 29.05.2018 and same was challenged before this Court, wherein, the petitioner herein had withdrawn the application with a liberty to file a fresh application before the trial Court for the same purpose as per guidelines set-out by the Apex Court in the case of Arjun Pandit Vs. Kailash Kushan Rao (2020) 7 SCC 1.During the trial, sincere efforts made by the petitioner herein to trace out the original video cassettes which were found from one Sadhak Motibhai Pariyani and therefore, the petitioner herein preferred an application Exh. 499 to permit her to produce 3 video cassettes to confront and cross-examine the witness Ishwarbhai Naranji Naik. The learned Sessions Judge, while rejecting the application, observed that original source was in English language and thereafter, PW-31, had translated the same in Gujarati language and therefore, Gujarati language speech recorded by Motibhai Pariyani cannot be said to be original source as the contents are not in original source. The learned Sessions Judge further observed that speech given by Dr. Nourm is said to be a primary evidence and subsequent translation of the speech is in Gujarati language, can be said to a secondary evidence and therefore, production of necessary certificate under Section 65B(4) of the Indian Evidence Act is a pre-condition to admit in evidence.

5. Learned counsel Mr. P.P. Majmudar for and on behalf of petitioner herein, submitted that the learned trial Court has totally misinterpreted the facts on record as well as the distinction between primary evidence and secondary evidence. It is the case of the petitioner that during a program, when Dr. Nourm was giving his lecture in English, at the very same time, witness No.31, Ishwar Naik was translating the lecture in Gujarati language and same was recorded by way of videography. It was further submitted that 3 video cassettes recorded by one Sadhak Motibhai, who has also filed an affidavit reg