The central legal point established in the judgment is the admissibility of secondary evidence, particularly in the form of a CD, and the role of the complainant in assisting the prosecution.

Judgment

1. The short point involved in this petition is as to whether Trial Court was justified in having permitted the accused-respondent to lead secondary evidence for proving the CD with Article J, which was in possession of the accused, by way of secondary evidence, as provided under Section 65 of the Evidence Act read with Section 102 of the Evidence Act. The order was passed on January 30, 2011 and has been assailed by the petitioner, who is the complainant and whose son was murdered, which is the subject matter of trial, wherein the respondent/accused is facing prosecution.

2. According to the learned Counsel appearing for the respondent, this petition is not maintainable as the petitioner who is the complainant is a third party and has no locus standi to file such a petition.

3. However, on behalf of the petitioner it has been contended that if an illegal order is passed, the petitioner being effected with such an order is entitled to invoke the inherent powers of this Court under Section 482, Cr.PC. This Court in view of Section 483, Cr.PC is also entitled to look into and correct the mistakes by exercising powers of continuous superintendence.

4. It would be appropriate to note that before filing of the application for secondary evidence, which has been allowed, vide the impugned order, the respondent had also filed and application under Section 91 of Cr.PC on June 22, 2009. By the said application, the respondent wanted production of record of video clipping of the incident in question and it was prayed that the concerned authorities, including the police be directed to produce the video clipping dated 26-12-2008 and 27-12-2008 as well as video clipping shown from 22-12-2008 to 26-12-2008, besides that a sketch was also required to be produced. There was no reference of any CD produced by the accused alongwith the said application. This application was opposed by the prosecution and vide order dated 2-7-2009, it was dismissed.

5. The said order was assailed by the respondent/accused before this Court by filing a Criminal Revision No. 902/2009. This Court vide detailed order passed on 26-8-2009, dismissed the revision petition, but made the following observations :-

"From perusal of the order, it appears that no illegality has been committed by the learned Tiial Court in dismissing the application as the petitioner is free to call the record at the stage of defence, in view of this petition filed by the petitioner is dismissed. However, in the circumstances, it is directed that the respondent if having any record as suggested by the petitioner shall not destroy the same till the disposal of the trial."

6. The respondent on 24-9-2009 moved an application without mentioning any provisions therein alongwith the CD claiming that to be a video footage as shown by SR Cable Operators pertaining to the incident in question and copy thereof was supplied to the prosecution and was also seen by the Court on Laptop in presence of the parties. During the course of exhibition of that CD, the contents of both the CDs, i.e., the one produced by the respondent/accused and one supplied to the prosecution were found to be identical. However, the Court dismissed that application and CD was returned to the respondent/accused. The said order for the sake of reference is reproduced here below :-

xxx xxx xxx

7. The respondent/accused then moved an application afresh, which is the subject matter of the present proceedings on 17-1-2011. By this application, the respondent/accused has sought permission to lead secondary evidence by pleading that since the records of the cable operators have been destroyed, he may be permitted to lead secondary evidence on the basis of the CD, which was available with him.

8. On the aforesaid application, the impugned order has been passed by the Sessions Judge. As per the said order, the prayer made by the respondent/accused was allowed. Relevant portion of that order, which may have a bearing on the present order bein