Sunday, 20 November 2016

Whether xerox copy of documents is admissible as secondary evidence if original court record is destroyed?

It is pertinent to note that, by way of present application, besides the quashing of proceedings, the petitioner has prayed for setting aside the order granting permission to adduce secondary evidence in the matter. It is apparent from the record that, application vide Exh. 73 was filed on 09.11.2009. On 22.04.2010, the defence has recorded its say & opposed the application only on the ground that the application is made after a period of nine years and that too with intention to prolong the proceedings. In the application filed, the prosecution has set out in detail the circumstances under which the complainant is required to file the application for leave to lead secondary evidence. It is specifically mentioned in the application that the record was destroyed during the course of destruction of old record and proceedings of the Court though the proceeding was pending. The permission was sought in the matter to produce the xerox copies of the record available with the complaint as secondary evidence. The application was made in terms of Section 65 of the said Act. On hearing the parties, as the request was found strictly in terms of Section 65 of the Evidence Act, the ld. Magistrate has allowed the application by order dt. 26.04.2010 and permitted the complainant to adduce secondary evidence in the matter. The order passed by ld. Magistrate is perfectly legal and there is no scope for interference in exercise of powers u/s 482 of Cr.P.C. After granting permission to lead secondary evidence, the evidence of complainant was recorded and the order framing charge was passed. Subsequently, in the month of August-2010, the present application is filed, which reflects the ulterior motive on the part of applicant to protract the proceedings before the trial Court.
Bombay High Court
Kailash S/O Mannalal Jindal vs The State Of Mah. At The Instance ... on 5 May, 2016
Bench: V.L. Achliya
Read full judgment here: click here 
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