Secondary evidence is only admissible under specific conditions outlined in Section 65 of the Evidence Act; blanket permission for secondary evidence without details of missing originals is erroneous.

JUDGMENT :

Raj Beer Singh, J.

1. Supplementary affidavit filed by learned counsel for the applicant, is taken on record.

2. Heard Sri Kamal Krishna, learned Senior Advocate, assisted by Sri Aditya Bhushan Singhal, learned counsel for the applicant and Sri Gyan Prakash, learned Dy. Solicitor General of India, assisted by Sri Sanjay Kumar Yadav, learned counsel for CBI and perused the record.

3. This application under section - 482 Cr.P.C. has been preferred against order dated 11.08.2023, passed by the Additional Sessions Judge, Court No. 7, Muzaffarnagar in Special Case No. 02/2004 (State Vs. Radha Mohan & Others), whereby the application filed by the C.B.I. / prosecution seeking permission to prove certain documents (photo-copies) by way of secondary evidence, has been allowed.

4. Learned Senior Advocate appearing for applicant submitted that impugned order is against law and thus, liable to be set aside. The Central Bureau of Investigation (hereinafter referred as C.B.I.) has filed application before the trial court, wherein it was specifically stated that after completion of investigation by C.B.I., the charge- sheet with original documents was filed in the court of Special Magistrate, C.B.I. Court, Dehradun on 25.03.1996 and thus, it is apparent that C.B.I. has filed original documents and in such circumstances, no permission can be granted to prove those documents viz photocopies by way of secondary evidence. Referring to provisions of Section - 65 Evidence Act and facts of the matter, it was submitted that impugned order is against facts and law and thus, liable to be set aside.

5. Learned Dy. Solicitor General appearing for the C.B.I. has opposed the application and submitted that initially the charge-sheet was filed by the C.B.I. on 25.03.1996 in the court of Special Magistrate, Dehradun. On 21.05.1997, the case was transferred from that court to Special Judge C.B.I., Lucknow in pursuance to the order of this Court. Thereafter, on 22.04.2004, the said case was transferred from that court to Muzaffarnagar and in transit of those transfers, certain original documents have gone missing. It was further submitted that the documents sought to be proved by secondary evidence mainly consist of the correspondence between various authorities. The Trial court has considered entire facts and position of law and allowed the application of C.B.I. vide impugned order dated 11.08.2023. Learned Dy. Solicitor General has relied upon case of Bipin Shantilal Panchal Vs. State of Gujarat & Anr. AIR 2001 SC 1158.

6. I have considered the rival submissions and perused the record including pleadings of the parties.

7. Perusal of record shows that applicant is facing trial in the aforesaid case. During pendency of the case, the C.B.I. has filed application before the trial court alleging that original documents filed with charge-sheet have gone missing and sought permission to prove those documents viz photocopies thereof by way of secondary evidence. That application has been allowed by the Trial court vide order dated 11.08.2023.

8. Before proceeding further, it would be pertinent to quote the provisions of Section - 65 Evidence Act, which read as under :-

"65. 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 6