1. Aggrieved by the order dated 13.12.2016 passed by the learned JMFC, Kamrup (M) in CR Case No.929/2015, the petitioner has filed the present petition under Section 482 Cr.P.C., praying for setting-aside the impugned order and also for direction to issue notice for production of the original documents.

2. The petitioner and the respondent are brothers. The petitioner owns a plot of land at village Kachari Garigaon in the district of Kamrup (M), Assam. As the petitioner resides in his native place at North Lakhimpur, he entrusted the respondent being his brother to look after the said property. Taking advantage of looking after the property, the respondent prepared a forged gift deed in respect of the said land of the petitioner in favour of the respondent forging the signature of the petitioner and therefore, the petitioner lodged a complaint against the respondent which was pending trial before the JMFC, Kamrup (M). In the said criminal proceeding, the petitioner filed an application under Section 66 of the Evidence Act, 1872 praying for issuing notice to the respondents to produce the original gift deed which was in possession of the respondent and also the sub-registrar for production of original thumb impression book, which contained the thumb impression of the parties to the deed.

3. Learned JMFC by the impugned order rejected the application of the petitioner citing basically two grounds, firstly, such direction would amount to testimonial compulsion in violation of Article 20 of the Constitution of India so far as the accused/respondent is concerned. Learned JMFC also observed that the petition was filed after framing of charge and in course of evidence and the petitioner did not produce any certified copy of the document, production of which was sought for. Since the petitioner did not produce the certified copy and failed to show any reason for calling the documents, learned magistrate declined to allow the prayer, so far the respondent is concerned. With regard to the prayer for notice to produce thumb impression book, learned Magistrate observed that there was no evidence with regard to alleged forgery and therefore, learned Magistrate did not consider it proper to issue notice to the Sub-Registrar for production of the thumb impression registrar.

4. Section 64 of the Evidence Act provides that "Documents must be proved by primary evidence except in the cases hereinafter mentioned."

5. Section 65 of the Evidence Act lays down the circumstance, under which, a party can adduce secondary evidence, which reads as under:

65. Cases in which secondary evidence relating to documents may be given.-Secondary evidence may be given of the existence, condition, or contents of a document in the following cases:—

(a) When the original is shown or appears to be in the possession or power-of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it;

(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;

(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;

(d) when the original is of such a nature as not to be easily movable;

(e) when the original is a public document within the meaning of section 74;

(f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in 1[India] to be given in evidence2; 1[India] to be given in evidence2;"

(g) when the originals consists of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the gen