It is well settled that tape-records of speeches are documents as defined in Section 3 of the Evidence Act and stand on no different footing than photographs. (See Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra4, SCC p. 26, para 19.) There is also no doubt that the new techniques and devices are the order of the day. Audio and videotape technology has emerged as a powerful medium through which a first-hand information about an event can be gathered and in a given situation may prove to be a crucial piece of evidence. At the same time, with fast development in the electronic techniques, the tapes/cassettes are more susceptible to tampering and alterations by transposition, excision, etc. which may be difficult to detect and therefore, such evidence has to be received with caution. Though it would neither be feasible nor advisable to lay down any exhaustive set of rules by which the admissibility of such evidence may be judged but it needs to be emphasised that to rule out the possibility of any kind of tampering with the tape, the standard of proof about its authenticity and accuracy has to be more stringent as compared to other documentary evidence." (vii) (2010) 9 SCC 712, M.Chandra vs. M.Thangamuthu and another :
This Application has been filed by the applicant/substituted election petitioner to substitute Document No.8, FIR, with the certified copy and, thereafter, mark the same through P.W.9.
2. According to the applicant, in paragraph 8 of the amended Election Petition, he already stated how the first respondent had indulged in bribing the electors by distribution of money and he also gave details of persons who had acted as the agents of the first respondent, the date of bribery and the name of the person (complainant) who lodged the FIR; at the time of filing of the Election Petition, xerox copies of the FIR had also been filed; the first respondent, who is the sole contesting respondent has not questioned the FIR; during his evidence as P.W.1, the marking of Document No.8 through him was objected on the ground that it was a xerox copy and, hence, he has now obtained a certified copy of the very same document. His further case is that on 04.02.2013, when the certified copy of the document, which was sought to be marked through P.W.9 by substituting the xerox copy, was objected by the first respondent, it was felt necessary that an application should be taken to substitute the xerox copy with the certified copy and, therefore, he has filed the present application.
3. First respondent/contesting respondent has filed a counter affidavit stating that there is no provision in law to substitute the document with a certified copy and, at the same time, there is also delay in seeking for substitution of the document which is very fatal to the case; the substituted election petitioner cannot change the nature of the document when there is a specific provision in the Representation of the People Act for filing the Election Petition with annexure, documents and the way of attestation and verification; Document No.8 is a xerox copy and the application has been filed by the substituted petitioner to substitute Document No.8, FIR, with the certified copy of the same, which is impermissible in law.
4. Learned counsel for the applicant would contend that Document No.8,FIR, being a public document, cannot be produced in original and hence the certified copy of the same can be marked as a document. In support of her contention, she would rely upon the following decisions : (i) AIR 1961 MADRAS 92 (FB), State of Madras vs. G.Krishnan :
"35. The learned counsel for the respondent relied on R.339 of the Criminal Rules of Practice, as entitling the respondent to the grant of copies. That rule merely sates that copies of records in criminal cases must be furnished to the parties concerned on payment of proper stamp charges. That would not entitle the parties to copies of those documents which under the law could not be granted till after a particular stage is reached.
36. Our answer to the question therefore can be stated thus: (1) The statements recorded under S.164, Cr.P.C., would be public documents falling under S. 74(1)(iii) of the Indian Evidence Act. (2) The accused will be entitled to copies of the same as a person interested; (3) but his right to obtain such copies before the filing of the charge-sheet has been taken away by implication by the provisions of S. 173(4) of the Cr.P.C., and that he will be entitled to the copies of the documents only in accordance therewith. Reference answered."
(ii) AIR 1969 Supreme Court 692, R.M.Seshadri vs. C.Vasantha Pai and others :
"16. The power of a civil court to summon court witnesses is contained in Order 16 Rule 14 of the Code of Civil Procedure. Now the representation of People Act enjoins that all the powers under the Code can be exercised and all the procedure as far as may be applicable to the trial of civil suits may be followed in the trial of election petitions. It would appear therefore that in the absence of any prohibition contained in the law, the Court has the power to summon a court witness if it thinks that the ends of justice require or that the case before it needs that kind of evidence. It must be remembered that an election petition is not an action at law or a suit in equity. It is a special proceeding. The law even requires that an election petitioner should not be allowed to withdraw an election petition which he has once made and that the election petition may be continued by another person, so long as another person is available. The policy of election law seems to be that for the establishment of purity of elections, investigation into all allegations of malpractices including corrupt practices at elections should be thoroughly investigated. Here was a case where a large number of cars were used presumably for the purpose of carrying voters to the booths. The question is in the face of this voluninous evidence was it not open to the judge if evidence was available to establish who had procured or hired vehicles, to summon witnesses who could depose to the same? In our opinion, such a power was properly exercised by the learned Judge. Although we would say that the trial should be at arms length and the Court should not really enter into the dispute as a third party, but it is not to be understood that the Court never has the power to summon a witness or to call for a document which would throw light upon the matter, particularly of corrupt practice which is alleged and is being sought to be proved. If the Court was satisfied that a corrupt practice had in fact been perpetrated, may be by one side or the other, it was absolutely necessary to find out who was the author of that corrupt practice. Section 98 of the Act itself allows the Court to name a person who is guilty of corrupt practice after giving him notice and this would be more so in the case of a candidate whose name appears to be connected with the corrupt practice, the proof whereof is not before the Court but can be so brought. In such a case we think that the court would be acting within its jurisdiction in using Order 16 Rule 14 to summon witnesses who can throw light upon the matter."
(iii) 1971 CRI. L. J. 875 (Calcutta High Court), Panchanan Mondal vs. The State :
"5. ... In view, however of the other specific provisions in the different statutes, which have been considered at length in the context of the otherissues, I hold that the case of F.I.R. is different and the accused is entitled to a copy thereof on payment of the legal fees therefor at any stage.
6. ... The provision for a free copy of the F.I.R. Under S.173(4) of the Criminal P.C., does not affect or alter the right of the accused to have a certified copy thereof at an earlier stage on payment of the charges as per the provisions of Ss.74(1)(iii) and 76 of the Indian Evidence Act read with R.308 of the Criminal Rules and Orders of the High Court, Calcutta. The two rights are distinct and separate, arising at different stages and do not rule out each other. They co-exist and do not overlap. The learned Sub-Divisional Magistrate has misunderstood and misinterpreted the provisions contained in S.173(4) of the Criminal P.C., which do not repeal or take away the existing rights of the accused to have a copy of a public document like the F.I.R., as there is no theory of implied repeal or repugnancy in law. It is pertinent also to refer to the principle of harmonious construction of statute whereby the provisions of S.173(4) of the Criminal P.C., and of Ss.74 and 76 of the Indian Evidence Act co-exist and do not rule out one another.
7. ... It was held by the Full Bench that S.76 of the Evidence Act entitled a person interested in a public document to inspect or obtain certified copies thereof and that a statement recorded under S.164, Cr.P.C., being a public document a person interested would be entitled to obtain a certified copy thereof, if there is no other statutory prohibition. ...
... On a perusal of the respective provisions in the statute and on a consideration of the different cases, I hold that S.173(4) of the Code of Criminal Procedure, far from circumscribing the effect of the provisions of S.76 of the Indian Evidence Act read with Rule 308 of the Criminal Rules and Orders of the High Court, Calcutta, by confining their operation only to a particular stage of the case, lends assurance to the said provisions by providing for even a free copy of the F.I.R. to be given to the accused, thereby pinpoiting the importance of the F.I.R. in the context of a proper defence of the accused. A denial or a delaying of the same right would ultimately frustrate the intention of the legislature. The third contention of Mr.Dutt accordingly succeeds.
8. ... The question of prejudice of the accused on account of the denial of the copy of the F.I.R. at the earlier stage therefore assumes greater importance and on a proper consideration thereof, I hold than it is expedient in the interests of justice that a certified copy of the first information report, which is a public document should be granted to the accused on his payment of the legal fees therefor at any stage even earlier than the stage of S.173(4) of the Code of Criminal Procedure. At the later stage, the accused will have the right to have a free copy but the same would not take away the right he already has in law to have a certified copy of the first information report on payment of the legal fees. The fourth and last contention also of Mr.Dutt therefore succeeds."
(iv) AIR 2001 SC 1158, Bipin Shantilal Panchal vs. State of Gujarat and another :
"12. It is an archaic practice that during the evidence-collecting stage, whenever any objection is raised regarding admissibility of any material in evidence the court does not proceed further without passing order on such objection. But the fallout of the above practice is this: Suppose the trial court, in a case, upholds a particular objection and excludes the material from being admitted in evidence and then proceeds with the trial and disposes of the case finally. If the appellate or the revisional court, when the same question is recanvassed, could take a different view on the admissibility of that material in such cases the appellate court would be deprived of the benefit of that evidence, because that was not put on record by the trial court. In such a situation the higher court may have to send the case back to the trial court for recording that evidence and then to dispose of the case afresh. Why should the trial prolong like that unnecessarily on account of practices created by ourselves. Such practices, when realised through the course of long period to be hindrances which impede steady and swift progress of trial proceedings, must be recast or remoulded to give way for better substitutes which would help acceleration of trial proceedings.
13. When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence-taking stage regarding the admissibility of any material or item of oral evidence the trial court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the court finds at the final stage that the objection so raised is sustainable the Judge or Magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. (However, we make it clear that if the objection relates to deficiency of stamp duty of a document the court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed.)" (v) AIR 2005 SC 2441 (1), Kailash vs. Nanhku and others :
"26. Three things are clear. Firstly, a careful reading of the language in which Order 8 Rule 1 has been drafted, shows that it casts an obligation on the defendant to file the written statement within 30 days from the date of service of summons on him and within the extended time falling within 90 days. The provision does not deal with the power of the court and also does not specifically take away the power of the court to take the written statement on record though filed beyond the time as provided for. Secondly, the nature of the provision contained in Order 8 Rule 1 is procedural. It is not a part of the substantive law. Thirdly, the object behind substituting Order 8 Rule 1 in the present shape is to curb the mischief of unscrupulous defendants adopting dilatory tactics, delaying the disposal of cases much to the chagrin of the plaintiffs and petitioners approaching the court for quick relief and also to the serious inconvenience of the court faced with frequent prayers for adjournments. The object is to expedite the hearing and not to scuttle the same. The process of justice may be speeded up and hurried but the fairness which is a basic element of justice cannot be permitted to be buried.
27. All the rules of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the statute, the provisions of CPC or any other procedural enactment ought not to be construed in a manner which would leave the court helpless to meet extraordinary situations in the ends of justice. The observations made by Krishna Iyer, J. in Sushil Kumar Sen v. State of Bihar10 are pertinent: (SCC p. 777, paras 5-6) The mortality of justice at the hands of law troubles a judge's conscience and points an angry interrogation at the law reformer.
The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in judges to act ex debito justitiae where the tragic sequel otherwise would be wholly inequitable. Justice is the goal of jurisprudence processual, as much as substantive.
45. We sum up and briefly state our conclusions as under:
(i) The trial of an election petition commences from the date of the receipt of the election petition by the court and continues till the date of its decision. The filing of pleadings is one stage in the trial of an election petition. The power vesting in the High Court to adjourn the trial from time to time (as far as practicable and without sacrificing the expediency and interests of justice) includes power to adjourn the hearing in an election petition, affording opportunity to the defendant to file a written statement. The availability of such power in the High Court is spelled out by the provisions of the Representation of the People Act, 1951 itself and rules made for purposes of that Act and a resort to the provisions of CPC is not called for.
(ii) On the language of Section 87(1) of the Act, it is clear that the applicability of the procedure provided for the trial of suits to the trial of election petitions is not attracted with all its rigidity and technicality. The rules of procedure contained in CPC apply to the trial of election petitions under the Act with flexibility and only as guidelines.
(iii) In case of conflict between the provisions of the Representation of the People Act, 1951 and the rules framed thereunder or the Rules framed by the High Court in exercise of the power conferred by Article 225 of the Constitution on the one hand, and the rules of procedure contained in CPC on the other hand, the former shall prevail over the latter."
(vi) (2010) 4 SCC 329, Tukaram S.Dighole vs. Manikrao Shivaji Kokate :
"11. The short question for consideration is whether the Tribunal was justified in discarding the cassette placed on record by the appellant to prove the allegation of appeal by the respondent to the voters to vote on communal ground, amounting to a corrupt practice within the meaning of Section 123(3) of the Act?
18. Chapter 5 of the Evidence Act deals with documentary evidence. Section 61 thereof lays down that:
61. Proof of contents of documents. The contents of documents may be proved either by primary or by secondary evidence.
As per Section 62 of the Evidence Act, primary evidence means the document itself produced for the inspection of the court. Section 63 categorises five kinds of secondary evidence. Section 64 lays down that documents must be proved by primary evidence except in the cases mentioned in the following sections. To put the matter briefly, the general rule is that secondary evidence is not admissible until the non-production of primary evidence is satisfactorily proved. However, clause (e) of Section 65, which enumerates the cases in which secondary evidence relating to documents may be given, carves out an exception to the extent that when the original document is a public document secondary evidence is admissible even though the original document is still in existence and available.
23. The second issue, in our opinion, is of greater importance than the first one. It is well settled that tape-records of speeches are documents as defined in Section 3 of the Evidence Act and stand on no different footing than photographs. (See Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra4, SCC p. 26, para 19.) There is also no doubt that the new techniques and devices are the order of the day. Audio and videotape technology has emerged as a powerful medium through which a first-hand information about an event can be gathered and in a given situation may prove to be a crucial piece of evidence. At the same time, with fast development in the electronic techniques, the tapes/cassettes are more susceptible to tampering and alterations by transposition, excision, etc. which may be difficult to detect and therefore, such evidence has to be received with caution. Though it would neither be feasible nor advisable to lay down any exhaustive set of rules by which the admissibility of such evidence may be judged but it needs to be emphasised that to rule out the possibility of any kind of tampering with the tape, the standard of proof about its authenticity and accuracy has to be more stringent as compared to other documentary evidence." (vii) (2010) 9 SCC 712, M.Chandra vs. M.Thangamuthu and another :
"47. We do not agree with the reasoning of the High Court. It is true that a party who wishes to rely upon the contents of a document must adduce primary evidence of the contents, and only in the exceptional cases will secondary evidence be admissible. However, if secondary evidence is admissible, it may be adduced in any form in which it may be available, whether by production of a copy, duplicate copy of a copy, by oral evidence of the contents or in another form. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. It should be emphasised that the exceptions to the rule requiring primary evidence are designed to provide relief in a case where a party is genuinely unable to produce the original through no fault of that party.
5. Per contra, learned Senior Counsel appearing for the first respondent would submit that there is no provision in law to substitute a document with a certified copy and, therefore, in this case, the substitution of Document No.8,FIR, with a certified copy cannot be permitted. He would cite the following authorities : (i) AIR 1983 SC 558, M.Karunanidhi vs. H.V.Handa and others :
"40. We would add for the sake of completeness that we have been referred to the decision of this Court in Sharif-ud-din v. Abdul Gani Lone19 but that decision is not directly in point. One of us (Venkataramiah, J.) had occasion to deal with the corresponding sub-section (3) of Section 89 of the Jammu & Kashmir Representation of the People Act, 1957 which reads: Every election petition should be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be true copy of the petition.
In that case, both the copies of the election petition contained the endorsement Attested true copy, Piyare Lal Handoo, Advocate . The question arose whether there was a sufficient compliance with the provisions of sub-section (3) of Section 89 of that Act. The Court pointed out that sub-section (3) of Section 89 consists of two parts. The first part requires that every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and the second part requires that every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition. The first part of the section has been held to be a mandatory requirement by this Court in Satya Narain case17. The Court held the second part also to be mandatory and observed: [SCC p. 410, para 18] It is true that Section 89(3) of the Act is purely procedural in character and that ordinarily procedural law should not be given that primacy by courts as would defeat the ends of justice. But if a law even though it may be procedural in character insists that an act must be done in a particular manner and further provides that certain consequences should follow if the act is not done in that manner, courts have no option but to enforce the law as it is.
Upon that view it was held that the attestation of the copies by counsel for the election petitioner as true copies was not a sufficient compliance with the provisions of sub-section (3) of Section 89 of that Act as it required attestation by the election petitioner himself. The decision is an application of the rule that mandatory provisions must be fulfilled exactly.
41. It is obvious that the photograph was a part of the averment contained in para 18(b). In the absence of the photograph the averment contained in para 18(b) would be incomplete. The photograph referred to in para 18(b) was therefore an integral part of the election petition. It follows that there was total non-compliance with the requirements of sub-section (3) of Section 81 of the Act by failure to serve the appellant with a copy of the election petition. In Chapter Subbarao case15 the Court held that if there is a total and complete non-compliance with the provisions of sub-section (3) of Section 81, the election petition could not be treated an election petition presented in accordance with the provisions of this Part within the meaning of Section 80 of the Act. Merely alleging that the appellant had put up fancy banners would be of no avail unless there was a description of the banner itself together with the slogan.
42. The conclusion is irresistible that the words copies thereof in sub-section (3) of Section 81 read in the context of sub-section (2) of Section 83 must necessarily refer not only to the election petition proper but also to schedules or annexures thereto containing particulars of any corrupt practice alleged therein. That being so, we are constrained to reverse the judgment of the High Court insofar as it holds that the photograph of the fancy banner adverted to in para 18(b) could not be treated to be an integral part of the election petition but was merely a piece of evidence as to the nature and type of fancy banner erected by the appellant and therefore failure to supply a copy of the photograph to the appellant did not amount to a violation of the provisions of sub-section (3) of Section 81 of the Act."
(ii) (2007) 5 SCC 730, J.Yashoda vs. K.Shobha Rani :
"7. Secondary evidence, as a general rule is admissible only in the absence of primary evidence. If the original itself is found to be inadmissible through failure of the party, who files it to prove it to be valid, the same party is not entitled to introduce secondary evidence of its contents.
8. Essentially, secondary evidence is an evidence which may be given in the absence of that better evidence which law requires to be given first, when a proper explanation of its absence is given. The definition in Section 63 is exhaustive as the section declares that secondary evidence means and includes and then follow the five kinds of secondary evidence.
9. The rule which is the most universal, namely, that the best evidence the nature of the case will admit shall be produced, decides this objection. That rule only means that, so long as the higher or superior evidence is within your possession or may be reached by you, you shall give no inferior proof in relation to it. Section 65 deals with the proof of the contents of the documents tendered in evidence. In order to enable a party to produce secondary evidence it is necessary for the party to prove existence and execution of the original document. Under Section 64, documents are to be provided (sic proved) by primary evidence. Section 65, however permits secondary evidence to be given of the existence, condition or contents of documents under the circumstances mentioned. The conditions laid down in the said section must be fulfilled before secondary evidence can be admitted. Secondary
evidence of the contents of a document cannot be admitted without non-production of the original being first accounted for in such a manner as to bring it within one or other of the cases provided for in the section. In Ashok Dulichand v. Madahavlal Dube1 it was inter alia held as follows: (SCC pp. 666-67, para 7) 7. After hearing the learned counsel for the parties, we are of the opinion that the order of the High Court in this respect calls for no interference. According to clause (a) of Section 65 of Evidence Act, secondary evidence may be given of the existence, condition or contents of a document 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. Clauses (b) to (g) of Section 65 specify some other contingencies wherein secondary evidence relating to a document may be given, but we are not concerned with those clauses as it is the common case of the parties that the present case is not covered by those clauses. In order to bring his case within the purview of clause (a) of Section 65, the appellant filed applications on 4-7-1973, before Respondent 1 was examined as a witness, praying that the said respondent be ordered to produce the original manuscript of which, according to the appellant, he had filed photostat copy. Prayer was also made by the appellant that in case Respondent 1 denied that the said manuscript had been written by him, the photostat copy might be got examined from a handwriting expert. The appellant also filed affidavit in support of his applications. It was however, nowhere stated in the affidavit that the original document of which the photostat copy had been filed by the appellant was in the possession of Respondent 1. There was also no other material on the record to indicate that the original document was in the possession of Respondent 1. The appellant further failed to explain as to what were the circumstances under which the photostat copy was prepared and who was in possession of the original document at the time its photograph was taken. Respondent 1 in his affidavit denied being in possession of or having anything to do with such a document. The photostat copy appeared to the High Court to be not above suspicion. In view of all the circumstances, the High Court came to the conclusion that no foundation had been laid by the appellant for leading secondary evidence in the shape of the photostat copy. We find no infirmity in the above order of the High Court as might justify interference by this Court.
10. The admitted facts in the present case are that the original was with one P. Srinibas Rao. Only when conditions of section prescribed in Section 65 are satisfied, documents can be admitted as secondary evidence. In the instant case clause (a) of Section 65 has not been satisfied. Therefore, the High Court's order does not suffer from any infirmity to warrant interference."
6. In the backdrop of the above pleadings, I have heard the learned counsel for the parties and also gone through the records coupled with the decisions relied upon.
7. The point that arises for consideration in this application is, whether a document can be substituted with a certified copy and marked as a documentary evidence ?
8. To decide the above question, the necessary provisions for consideration are : Order IX Rule 24 (e) of the Madras High Court Original Side Rules; Sections 87 and 93 of the Representation of the People Act,1951 and Sections 64,65 and 74 of the Indian Evidence Act, which read as under : 8.1. Order IX Rule 24 (e) of the Madras High Court Original Side Rules :
"(e). The originals of such of the documents referred to in Clauses (a) (b) and (c), as are required for marking as exhibits shall be produced at the hearing of the suit."
8.2. Section 87 of the Representation of the People Act,1951 :
"87. Procedure before the High Court. (1) Subject to the provisions of this Act and of any rules made thereunder, every election petition shall be tried by the High Court, as nearly as may be, in
accordance with the procedure applicable under the Code of Civil Procedure, 1908 (5 of 1908) to the trial of suits:
Provided that the High Court shall have the discretion to refuse, for reasons to be recorded in writing, to examine any witness or witnesses if it is of the opinion that the evidence of such witness or witnesses is not material for the decision of the petition or that the party tendering such witness or witnesses is doing so on frivolous grounds or with a view to delay the proceedings.
(2) The provisions of the Indian Evidence Act, 1872 (1 of 1872), shall, subject to the provisions of this Act, be deemed to apply in all respects to the trial of an election petition.
8.3. Section 93 of the Representation of the People Act,1951 :
"93.Documentaryevidence. Notwithstanding anything in any enactment to the contrary, no document shall be inadmissible in evidence at the trial of an election petition on the ground that it is not duly stamped or registered."
8.4. Section 64 of the Indian Evidence Act :
"64. Proof of documents by primary evidence. Documents must be proved by primary evidence except in the cases hereinafter mentioned."
8.5. Section 65 of the Indian Evidence Act :
"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 evidence;
(g) when the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection.
In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible.
In case (b), the written admission is admissible.
In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible.
In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents.
8.6. Section 74 of the Indian Evidence Act :
"74. Public documents. The following documents are public documents
(1) documents forming the acts or records of the acts
(i) of the sovereign authority,
(ii) of official bodies and tribunals, and
(iii) of public officers, legislative, judicial and executive, of any part of India or of the Commonwealth, or of a foreign country;
(2) public records kept in any State of private documents.
9. Order IX Rule 24 (e) of the Madras High Court Original Side Rules contemplates that only the originals of such of the documents as are required for marking as exhibits shall be produced at the hearing of the suit. However, the said provision does not contemplate as to the impermissibility of marking of copies of the originals at the time of trial, which is a factor to be reckoned with. If that is taken into consideration, production of original at the stage of trial for marking of documents is not necessary.
10. Section 87 of the Representation of the People Act deals with the Procedure before the High Court. As per the proviso to Sub-section (1) of Section 87, every election petition shall be tried by the High Court in accordance with the procedure applicable under the Code of Civil Procedure to the trial of suits. Sub-section (2) states that the provisions of the Indian Evidence Act, 1872, shall be deemed to apply in all respects to the trial of an election petition. These provisions are subject to the provisions of the Act and any rules made thereunder.
11. That being so, Section 93 of the Act provides for documentary evidence. Under this Section, no document shall be inadmissible in evidence at the trial of an election petition on the ground that it is not duly stamped or registered. It means, every document is admissible in evidence at the trial of an election petition even though the said document is not duly stamped or registered or whatsoever. This Section is drafted in such a way that the provisions thereof are notwithstanding anything in any enactment to the contrary. It is important to mention here that while CPC and Indian Evidence Act are general enactments, Representation of the People Act is a special enactment, under which circumstances, it is a settled law that the special law prevails over the general law.
12. Section 64 of the Indian Evidence Act provides for proof of documents by primary evidence, as per which documents must be proved by primary evidence except in the cases mentioned in Section 65.
13. Section 65 deals with cases in which secondary evidence relating to documents may be given. Under this Section, 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 evidence; (g) when the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection.
14. While in cases (a), (c) and (d) above, any secondary evidence of the contents of the document is admissible and in case (b) the written admission is admissible, in case (e) or (f), a certified copy of the document, is admissible.
15. Section 74 defines as to what the public documents are. They are (1) documents forming the acts or records of the acts (i) of the sovereign authority, (ii) of official bodies and tribunals, and (iii) of public officers, legislative, judicial and executive, of any part of India or of the Commonwealth, or of a foreign country; and (2) public records kept in any State of private documents.
16. Since the document in question viz., FIR is admittedly a public document well within the meaning of Section 74 and the same having not been disputed, the certified copy of the said document is admissible as a secondary evidence as per Section 65 (e).
17. Further, Chapter 5 of the Indian Evidence Act deals with documentary evidence. Section 61 thereof lays down as to proof of contents of documents, which reads as under :
61. Proof of contents of documents. The contents of documents may be proved either by primary or by secondary evidence.
18. The above Section says that contents of the documents may be proved either by primary or secondary evidence. As per Section 62 of the Evidence Act, primary evidence means the document itself produced for the inspection of the court. Section 63 categorises five kinds of secondary evidence. Section 64 lays down that documents must be proved by primary evidence except in the cases mentioned in the following sections. To put the matter briefly, the general rule is that secondary evidence is not admissible until the non-production of primary evidence is satisfactorily proved. However, clause (e) of Section 65, which enumerates the cases in which secondary evidence relating to documents may be given, carves out an exception to the extent that when the original document is a public document secondary evidence is admissible even though the original document is still in existence and available.
19. It is true, as per Section 64 of the Indian Evidence Act, documents must be proved by primary evidence. But, it has an exception to Section 65, which permits secondary evidence in the circumstances referred to above.
20. On the language of Section 87 (1) of the Representation of the People Act, it is clear that the applicability of the procedure provided for trial of suits to the trial of election petitions is not attracted with all its rigidity and technicality. The rules of procedure contained in the CPC apply to the trial of election petitions under the Act with flexibility and only as guidelines. This is held by the Supreme Court in the case of Kailash, relied upon by the petitioner. It means, the provisions of CPC applicable to the trial of suits cannot be made applicable to the trial of election petitions in all fours and the said provisions shall only be taken as guidelines.
21. In this case, the substitution of Document No.8, FIR, with the certified copy is also necessitated for the reason that if this Court upholds the objection of the first respondent and excludes the material from being admitted in evidence and then proceeds with the trial and disposes of the case finally, if the appellate court, when the same question is re-canvassed, could take a different view on the admissibility of that material, in such cases, the appellate court would be deprived of the benefit of that evidence, because that was not put on record by the trial Court. In such a situation, the higher Court may have to send the case back to the trial Court for recording that evidence and then to dispose of the case afresh. Such practices, when realised through the course of long period to be hindrances which impede steady and swift progress of trial proceedings, must be recast or remoulded to give way for better substitutes which would help acceleration of trial proceedings. While permitting the marking of certified copy of document No.8 as an exhibit, this Court also takes note of the objection, which can be decided at the last stage in the final judgment. At the same time, if the Court finds at the final stage that the objection so raised is sustainable, the said evidence shall be excluded from consideration. This is done, following the ratio laid down by the Supreme Court in Bipin Shantilal Panchal's case, cited above.
22. For all the foregoing reasons, the applicant is permitted to substitute the photocopy of Document No.8,FIR, which is marked at the time of filing of the Election Petition, with the certified copy, which shall be marked only as a secondary evidence but not as a primary evidence, as the petitioner has not produced the original before this Court, and to that extent only the said document can be used but not as the original document.
23. Application is disposed of to the extent indicated above. No costs.
Index : Yes 27-03-2013
Internet : Yes
dixit
Note to Office :
Issue order copy
Madras High Court
For vs For on 27 March, 2013
DATED: 27/03/2013This Application has been filed by the applicant/substituted election petitioner to substitute Document No.8, FIR, with the certified copy and, thereafter, mark the same through P.W.9.
2. According to the applicant, in paragraph 8 of the amended Election Petition, he already stated how the first respondent had indulged in bribing the electors by distribution of money and he also gave details of persons who had acted as the agents of the first respondent, the date of bribery and the name of the person (complainant) who lodged the FIR; at the time of filing of the Election Petition, xerox copies of the FIR had also been filed; the first respondent, who is the sole contesting respondent has not questioned the FIR; during his evidence as P.W.1, the marking of Document No.8 through him was objected on the ground that it was a xerox copy and, hence, he has now obtained a certified copy of the very same document. His further case is that on 04.02.2013, when the certified copy of the document, which was sought to be marked through P.W.9 by substituting the xerox copy, was objected by the first respondent, it was felt necessary that an application should be taken to substitute the xerox copy with the certified copy and, therefore, he has filed the present application.
3. First respondent/contesting respondent has filed a counter affidavit stating that there is no provision in law to substitute the document with a certified copy and, at the same time, there is also delay in seeking for substitution of the document which is very fatal to the case; the substituted election petitioner cannot change the nature of the document when there is a specific provision in the Representation of the People Act for filing the Election Petition with annexure, documents and the way of attestation and verification; Document No.8 is a xerox copy and the application has been filed by the substituted petitioner to substitute Document No.8, FIR, with the certified copy of the same, which is impermissible in law.
4. Learned counsel for the applicant would contend that Document No.8,FIR, being a public document, cannot be produced in original and hence the certified copy of the same can be marked as a document. In support of her contention, she would rely upon the following decisions : (i) AIR 1961 MADRAS 92 (FB), State of Madras vs. G.Krishnan :
"35. The learned counsel for the respondent relied on R.339 of the Criminal Rules of Practice, as entitling the respondent to the grant of copies. That rule merely sates that copies of records in criminal cases must be furnished to the parties concerned on payment of proper stamp charges. That would not entitle the parties to copies of those documents which under the law could not be granted till after a particular stage is reached.
36. Our answer to the question therefore can be stated thus: (1) The statements recorded under S.164, Cr.P.C., would be public documents falling under S. 74(1)(iii) of the Indian Evidence Act. (2) The accused will be entitled to copies of the same as a person interested; (3) but his right to obtain such copies before the filing of the charge-sheet has been taken away by implication by the provisions of S. 173(4) of the Cr.P.C., and that he will be entitled to the copies of the documents only in accordance therewith. Reference answered."
(ii) AIR 1969 Supreme Court 692, R.M.Seshadri vs. C.Vasantha Pai and others :
"16. The power of a civil court to summon court witnesses is contained in Order 16 Rule 14 of the Code of Civil Procedure. Now the representation of People Act enjoins that all the powers under the Code can be exercised and all the procedure as far as may be applicable to the trial of civil suits may be followed in the trial of election petitions. It would appear therefore that in the absence of any prohibition contained in the law, the Court has the power to summon a court witness if it thinks that the ends of justice require or that the case before it needs that kind of evidence. It must be remembered that an election petition is not an action at law or a suit in equity. It is a special proceeding. The law even requires that an election petitioner should not be allowed to withdraw an election petition which he has once made and that the election petition may be continued by another person, so long as another person is available. The policy of election law seems to be that for the establishment of purity of elections, investigation into all allegations of malpractices including corrupt practices at elections should be thoroughly investigated. Here was a case where a large number of cars were used presumably for the purpose of carrying voters to the booths. The question is in the face of this voluninous evidence was it not open to the judge if evidence was available to establish who had procured or hired vehicles, to summon witnesses who could depose to the same? In our opinion, such a power was properly exercised by the learned Judge. Although we would say that the trial should be at arms length and the Court should not really enter into the dispute as a third party, but it is not to be understood that the Court never has the power to summon a witness or to call for a document which would throw light upon the matter, particularly of corrupt practice which is alleged and is being sought to be proved. If the Court was satisfied that a corrupt practice had in fact been perpetrated, may be by one side or the other, it was absolutely necessary to find out who was the author of that corrupt practice. Section 98 of the Act itself allows the Court to name a person who is guilty of corrupt practice after giving him notice and this would be more so in the case of a candidate whose name appears to be connected with the corrupt practice, the proof whereof is not before the Court but can be so brought. In such a case we think that the court would be acting within its jurisdiction in using Order 16 Rule 14 to summon witnesses who can throw light upon the matter."
(iii) 1971 CRI. L. J. 875 (Calcutta High Court), Panchanan Mondal vs. The State :
"5. ... In view, however of the other specific provisions in the different statutes, which have been considered at length in the context of the otherissues, I hold that the case of F.I.R. is different and the accused is entitled to a copy thereof on payment of the legal fees therefor at any stage.
6. ... The provision for a free copy of the F.I.R. Under S.173(4) of the Criminal P.C., does not affect or alter the right of the accused to have a certified copy thereof at an earlier stage on payment of the charges as per the provisions of Ss.74(1)(iii) and 76 of the Indian Evidence Act read with R.308 of the Criminal Rules and Orders of the High Court, Calcutta. The two rights are distinct and separate, arising at different stages and do not rule out each other. They co-exist and do not overlap. The learned Sub-Divisional Magistrate has misunderstood and misinterpreted the provisions contained in S.173(4) of the Criminal P.C., which do not repeal or take away the existing rights of the accused to have a copy of a public document like the F.I.R., as there is no theory of implied repeal or repugnancy in law. It is pertinent also to refer to the principle of harmonious construction of statute whereby the provisions of S.173(4) of the Criminal P.C., and of Ss.74 and 76 of the Indian Evidence Act co-exist and do not rule out one another.
7. ... It was held by the Full Bench that S.76 of the Evidence Act entitled a person interested in a public document to inspect or obtain certified copies thereof and that a statement recorded under S.164, Cr.P.C., being a public document a person interested would be entitled to obtain a certified copy thereof, if there is no other statutory prohibition. ...
... On a perusal of the respective provisions in the statute and on a consideration of the different cases, I hold that S.173(4) of the Code of Criminal Procedure, far from circumscribing the effect of the provisions of S.76 of the Indian Evidence Act read with Rule 308 of the Criminal Rules and Orders of the High Court, Calcutta, by confining their operation only to a particular stage of the case, lends assurance to the said provisions by providing for even a free copy of the F.I.R. to be given to the accused, thereby pinpoiting the importance of the F.I.R. in the context of a proper defence of the accused. A denial or a delaying of the same right would ultimately frustrate the intention of the legislature. The third contention of Mr.Dutt accordingly succeeds.
8. ... The question of prejudice of the accused on account of the denial of the copy of the F.I.R. at the earlier stage therefore assumes greater importance and on a proper consideration thereof, I hold than it is expedient in the interests of justice that a certified copy of the first information report, which is a public document should be granted to the accused on his payment of the legal fees therefor at any stage even earlier than the stage of S.173(4) of the Code of Criminal Procedure. At the later stage, the accused will have the right to have a free copy but the same would not take away the right he already has in law to have a certified copy of the first information report on payment of the legal fees. The fourth and last contention also of Mr.Dutt therefore succeeds."
(iv) AIR 2001 SC 1158, Bipin Shantilal Panchal vs. State of Gujarat and another :
"12. It is an archaic practice that during the evidence-collecting stage, whenever any objection is raised regarding admissibility of any material in evidence the court does not proceed further without passing order on such objection. But the fallout of the above practice is this: Suppose the trial court, in a case, upholds a particular objection and excludes the material from being admitted in evidence and then proceeds with the trial and disposes of the case finally. If the appellate or the revisional court, when the same question is recanvassed, could take a different view on the admissibility of that material in such cases the appellate court would be deprived of the benefit of that evidence, because that was not put on record by the trial court. In such a situation the higher court may have to send the case back to the trial court for recording that evidence and then to dispose of the case afresh. Why should the trial prolong like that unnecessarily on account of practices created by ourselves. Such practices, when realised through the course of long period to be hindrances which impede steady and swift progress of trial proceedings, must be recast or remoulded to give way for better substitutes which would help acceleration of trial proceedings.
13. When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence-taking stage regarding the admissibility of any material or item of oral evidence the trial court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the court finds at the final stage that the objection so raised is sustainable the Judge or Magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. (However, we make it clear that if the objection relates to deficiency of stamp duty of a document the court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed.)" (v) AIR 2005 SC 2441 (1), Kailash vs. Nanhku and others :
"26. Three things are clear. Firstly, a careful reading of the language in which Order 8 Rule 1 has been drafted, shows that it casts an obligation on the defendant to file the written statement within 30 days from the date of service of summons on him and within the extended time falling within 90 days. The provision does not deal with the power of the court and also does not specifically take away the power of the court to take the written statement on record though filed beyond the time as provided for. Secondly, the nature of the provision contained in Order 8 Rule 1 is procedural. It is not a part of the substantive law. Thirdly, the object behind substituting Order 8 Rule 1 in the present shape is to curb the mischief of unscrupulous defendants adopting dilatory tactics, delaying the disposal of cases much to the chagrin of the plaintiffs and petitioners approaching the court for quick relief and also to the serious inconvenience of the court faced with frequent prayers for adjournments. The object is to expedite the hearing and not to scuttle the same. The process of justice may be speeded up and hurried but the fairness which is a basic element of justice cannot be permitted to be buried.
27. All the rules of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the statute, the provisions of CPC or any other procedural enactment ought not to be construed in a manner which would leave the court helpless to meet extraordinary situations in the ends of justice. The observations made by Krishna Iyer, J. in Sushil Kumar Sen v. State of Bihar10 are pertinent: (SCC p. 777, paras 5-6) The mortality of justice at the hands of law troubles a judge's conscience and points an angry interrogation at the law reformer.
The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in judges to act ex debito justitiae where the tragic sequel otherwise would be wholly inequitable. Justice is the goal of jurisprudence processual, as much as substantive.
45. We sum up and briefly state our conclusions as under:
(i) The trial of an election petition commences from the date of the receipt of the election petition by the court and continues till the date of its decision. The filing of pleadings is one stage in the trial of an election petition. The power vesting in the High Court to adjourn the trial from time to time (as far as practicable and without sacrificing the expediency and interests of justice) includes power to adjourn the hearing in an election petition, affording opportunity to the defendant to file a written statement. The availability of such power in the High Court is spelled out by the provisions of the Representation of the People Act, 1951 itself and rules made for purposes of that Act and a resort to the provisions of CPC is not called for.
(ii) On the language of Section 87(1) of the Act, it is clear that the applicability of the procedure provided for the trial of suits to the trial of election petitions is not attracted with all its rigidity and technicality. The rules of procedure contained in CPC apply to the trial of election petitions under the Act with flexibility and only as guidelines.
(iii) In case of conflict between the provisions of the Representation of the People Act, 1951 and the rules framed thereunder or the Rules framed by the High Court in exercise of the power conferred by Article 225 of the Constitution on the one hand, and the rules of procedure contained in CPC on the other hand, the former shall prevail over the latter."
(vi) (2010) 4 SCC 329, Tukaram S.Dighole vs. Manikrao Shivaji Kokate :
"11. The short question for consideration is whether the Tribunal was justified in discarding the cassette placed on record by the appellant to prove the allegation of appeal by the respondent to the voters to vote on communal ground, amounting to a corrupt practice within the meaning of Section 123(3) of the Act?
18. Chapter 5 of the Evidence Act deals with documentary evidence. Section 61 thereof lays down that:
61. Proof of contents of documents. The contents of documents may be proved either by primary or by secondary evidence.
As per Section 62 of the Evidence Act, primary evidence means the document itself produced for the inspection of the court. Section 63 categorises five kinds of secondary evidence. Section 64 lays down that documents must be proved by primary evidence except in the cases mentioned in the following sections. To put the matter briefly, the general rule is that secondary evidence is not admissible until the non-production of primary evidence is satisfactorily proved. However, clause (e) of Section 65, which enumerates the cases in which secondary evidence relating to documents may be given, carves out an exception to the extent that when the original document is a public document secondary evidence is admissible even though the original document is still in existence and available.
23. The second issue, in our opinion, is of greater importance than the first one. It is well settled that tape-records of speeches are documents as defined in Section 3 of the Evidence Act and stand on no different footing than photographs. (See Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra4, SCC p. 26, para 19.) There is also no doubt that the new techniques and devices are the order of the day. Audio and videotape technology has emerged as a powerful medium through which a first-hand information about an event can be gathered and in a given situation may prove to be a crucial piece of evidence. At the same time, with fast development in the electronic techniques, the tapes/cassettes are more susceptible to tampering and alterations by transposition, excision, etc. which may be difficult to detect and therefore, such evidence has to be received with caution. Though it would neither be feasible nor advisable to lay down any exhaustive set of rules by which the admissibility of such evidence may be judged but it needs to be emphasised that to rule out the possibility of any kind of tampering with the tape, the standard of proof about its authenticity and accuracy has to be more stringent as compared to other documentary evidence." (vii) (2010) 9 SCC 712, M.Chandra vs. M.Thangamuthu and another :
"47. We do not agree with the reasoning of the High Court. It is true that a party who wishes to rely upon the contents of a document must adduce primary evidence of the contents, and only in the exceptional cases will secondary evidence be admissible. However, if secondary evidence is admissible, it may be adduced in any form in which it may be available, whether by production of a copy, duplicate copy of a copy, by oral evidence of the contents or in another form. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. It should be emphasised that the exceptions to the rule requiring primary evidence are designed to provide relief in a case where a party is genuinely unable to produce the original through no fault of that party.
5. Per contra, learned Senior Counsel appearing for the first respondent would submit that there is no provision in law to substitute a document with a certified copy and, therefore, in this case, the substitution of Document No.8,FIR, with a certified copy cannot be permitted. He would cite the following authorities : (i) AIR 1983 SC 558, M.Karunanidhi vs. H.V.Handa and others :
"40. We would add for the sake of completeness that we have been referred to the decision of this Court in Sharif-ud-din v. Abdul Gani Lone19 but that decision is not directly in point. One of us (Venkataramiah, J.) had occasion to deal with the corresponding sub-section (3) of Section 89 of the Jammu & Kashmir Representation of the People Act, 1957 which reads: Every election petition should be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be true copy of the petition.
In that case, both the copies of the election petition contained the endorsement Attested true copy, Piyare Lal Handoo, Advocate . The question arose whether there was a sufficient compliance with the provisions of sub-section (3) of Section 89 of that Act. The Court pointed out that sub-section (3) of Section 89 consists of two parts. The first part requires that every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and the second part requires that every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition. The first part of the section has been held to be a mandatory requirement by this Court in Satya Narain case17. The Court held the second part also to be mandatory and observed: [SCC p. 410, para 18] It is true that Section 89(3) of the Act is purely procedural in character and that ordinarily procedural law should not be given that primacy by courts as would defeat the ends of justice. But if a law even though it may be procedural in character insists that an act must be done in a particular manner and further provides that certain consequences should follow if the act is not done in that manner, courts have no option but to enforce the law as it is.
Upon that view it was held that the attestation of the copies by counsel for the election petitioner as true copies was not a sufficient compliance with the provisions of sub-section (3) of Section 89 of that Act as it required attestation by the election petitioner himself. The decision is an application of the rule that mandatory provisions must be fulfilled exactly.
41. It is obvious that the photograph was a part of the averment contained in para 18(b). In the absence of the photograph the averment contained in para 18(b) would be incomplete. The photograph referred to in para 18(b) was therefore an integral part of the election petition. It follows that there was total non-compliance with the requirements of sub-section (3) of Section 81 of the Act by failure to serve the appellant with a copy of the election petition. In Chapter Subbarao case15 the Court held that if there is a total and complete non-compliance with the provisions of sub-section (3) of Section 81, the election petition could not be treated an election petition presented in accordance with the provisions of this Part within the meaning of Section 80 of the Act. Merely alleging that the appellant had put up fancy banners would be of no avail unless there was a description of the banner itself together with the slogan.
42. The conclusion is irresistible that the words copies thereof in sub-section (3) of Section 81 read in the context of sub-section (2) of Section 83 must necessarily refer not only to the election petition proper but also to schedules or annexures thereto containing particulars of any corrupt practice alleged therein. That being so, we are constrained to reverse the judgment of the High Court insofar as it holds that the photograph of the fancy banner adverted to in para 18(b) could not be treated to be an integral part of the election petition but was merely a piece of evidence as to the nature and type of fancy banner erected by the appellant and therefore failure to supply a copy of the photograph to the appellant did not amount to a violation of the provisions of sub-section (3) of Section 81 of the Act."
(ii) (2007) 5 SCC 730, J.Yashoda vs. K.Shobha Rani :
"7. Secondary evidence, as a general rule is admissible only in the absence of primary evidence. If the original itself is found to be inadmissible through failure of the party, who files it to prove it to be valid, the same party is not entitled to introduce secondary evidence of its contents.
8. Essentially, secondary evidence is an evidence which may be given in the absence of that better evidence which law requires to be given first, when a proper explanation of its absence is given. The definition in Section 63 is exhaustive as the section declares that secondary evidence means and includes and then follow the five kinds of secondary evidence.
9. The rule which is the most universal, namely, that the best evidence the nature of the case will admit shall be produced, decides this objection. That rule only means that, so long as the higher or superior evidence is within your possession or may be reached by you, you shall give no inferior proof in relation to it. Section 65 deals with the proof of the contents of the documents tendered in evidence. In order to enable a party to produce secondary evidence it is necessary for the party to prove existence and execution of the original document. Under Section 64, documents are to be provided (sic proved) by primary evidence. Section 65, however permits secondary evidence to be given of the existence, condition or contents of documents under the circumstances mentioned. The conditions laid down in the said section must be fulfilled before secondary evidence can be admitted. Secondary
evidence of the contents of a document cannot be admitted without non-production of the original being first accounted for in such a manner as to bring it within one or other of the cases provided for in the section. In Ashok Dulichand v. Madahavlal Dube1 it was inter alia held as follows: (SCC pp. 666-67, para 7) 7. After hearing the learned counsel for the parties, we are of the opinion that the order of the High Court in this respect calls for no interference. According to clause (a) of Section 65 of Evidence Act, secondary evidence may be given of the existence, condition or contents of a document 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. Clauses (b) to (g) of Section 65 specify some other contingencies wherein secondary evidence relating to a document may be given, but we are not concerned with those clauses as it is the common case of the parties that the present case is not covered by those clauses. In order to bring his case within the purview of clause (a) of Section 65, the appellant filed applications on 4-7-1973, before Respondent 1 was examined as a witness, praying that the said respondent be ordered to produce the original manuscript of which, according to the appellant, he had filed photostat copy. Prayer was also made by the appellant that in case Respondent 1 denied that the said manuscript had been written by him, the photostat copy might be got examined from a handwriting expert. The appellant also filed affidavit in support of his applications. It was however, nowhere stated in the affidavit that the original document of which the photostat copy had been filed by the appellant was in the possession of Respondent 1. There was also no other material on the record to indicate that the original document was in the possession of Respondent 1. The appellant further failed to explain as to what were the circumstances under which the photostat copy was prepared and who was in possession of the original document at the time its photograph was taken. Respondent 1 in his affidavit denied being in possession of or having anything to do with such a document. The photostat copy appeared to the High Court to be not above suspicion. In view of all the circumstances, the High Court came to the conclusion that no foundation had been laid by the appellant for leading secondary evidence in the shape of the photostat copy. We find no infirmity in the above order of the High Court as might justify interference by this Court.
10. The admitted facts in the present case are that the original was with one P. Srinibas Rao. Only when conditions of section prescribed in Section 65 are satisfied, documents can be admitted as secondary evidence. In the instant case clause (a) of Section 65 has not been satisfied. Therefore, the High Court's order does not suffer from any infirmity to warrant interference."
6. In the backdrop of the above pleadings, I have heard the learned counsel for the parties and also gone through the records coupled with the decisions relied upon.
7. The point that arises for consideration in this application is, whether a document can be substituted with a certified copy and marked as a documentary evidence ?
8. To decide the above question, the necessary provisions for consideration are : Order IX Rule 24 (e) of the Madras High Court Original Side Rules; Sections 87 and 93 of the Representation of the People Act,1951 and Sections 64,65 and 74 of the Indian Evidence Act, which read as under : 8.1. Order IX Rule 24 (e) of the Madras High Court Original Side Rules :
"(e). The originals of such of the documents referred to in Clauses (a) (b) and (c), as are required for marking as exhibits shall be produced at the hearing of the suit."
8.2. Section 87 of the Representation of the People Act,1951 :
"87. Procedure before the High Court. (1) Subject to the provisions of this Act and of any rules made thereunder, every election petition shall be tried by the High Court, as nearly as may be, in
accordance with the procedure applicable under the Code of Civil Procedure, 1908 (5 of 1908) to the trial of suits:
Provided that the High Court shall have the discretion to refuse, for reasons to be recorded in writing, to examine any witness or witnesses if it is of the opinion that the evidence of such witness or witnesses is not material for the decision of the petition or that the party tendering such witness or witnesses is doing so on frivolous grounds or with a view to delay the proceedings.
(2) The provisions of the Indian Evidence Act, 1872 (1 of 1872), shall, subject to the provisions of this Act, be deemed to apply in all respects to the trial of an election petition.
8.3. Section 93 of the Representation of the People Act,1951 :
"93.Documentaryevidence. Notwithstanding anything in any enactment to the contrary, no document shall be inadmissible in evidence at the trial of an election petition on the ground that it is not duly stamped or registered."
8.4. Section 64 of the Indian Evidence Act :
"64. Proof of documents by primary evidence. Documents must be proved by primary evidence except in the cases hereinafter mentioned."
8.5. Section 65 of the Indian Evidence Act :
"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 evidence;
(g) when the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection.
In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible.
In case (b), the written admission is admissible.
In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible.
In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents.
8.6. Section 74 of the Indian Evidence Act :
"74. Public documents. The following documents are public documents
(1) documents forming the acts or records of the acts
(i) of the sovereign authority,
(ii) of official bodies and tribunals, and
(iii) of public officers, legislative, judicial and executive, of any part of India or of the Commonwealth, or of a foreign country;
(2) public records kept in any State of private documents.
9. Order IX Rule 24 (e) of the Madras High Court Original Side Rules contemplates that only the originals of such of the documents as are required for marking as exhibits shall be produced at the hearing of the suit. However, the said provision does not contemplate as to the impermissibility of marking of copies of the originals at the time of trial, which is a factor to be reckoned with. If that is taken into consideration, production of original at the stage of trial for marking of documents is not necessary.
10. Section 87 of the Representation of the People Act deals with the Procedure before the High Court. As per the proviso to Sub-section (1) of Section 87, every election petition shall be tried by the High Court in accordance with the procedure applicable under the Code of Civil Procedure to the trial of suits. Sub-section (2) states that the provisions of the Indian Evidence Act, 1872, shall be deemed to apply in all respects to the trial of an election petition. These provisions are subject to the provisions of the Act and any rules made thereunder.
11. That being so, Section 93 of the Act provides for documentary evidence. Under this Section, no document shall be inadmissible in evidence at the trial of an election petition on the ground that it is not duly stamped or registered. It means, every document is admissible in evidence at the trial of an election petition even though the said document is not duly stamped or registered or whatsoever. This Section is drafted in such a way that the provisions thereof are notwithstanding anything in any enactment to the contrary. It is important to mention here that while CPC and Indian Evidence Act are general enactments, Representation of the People Act is a special enactment, under which circumstances, it is a settled law that the special law prevails over the general law.
12. Section 64 of the Indian Evidence Act provides for proof of documents by primary evidence, as per which documents must be proved by primary evidence except in the cases mentioned in Section 65.
13. Section 65 deals with cases in which secondary evidence relating to documents may be given. Under this Section, 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 evidence; (g) when the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection.
14. While in cases (a), (c) and (d) above, any secondary evidence of the contents of the document is admissible and in case (b) the written admission is admissible, in case (e) or (f), a certified copy of the document, is admissible.
15. Section 74 defines as to what the public documents are. They are (1) documents forming the acts or records of the acts (i) of the sovereign authority, (ii) of official bodies and tribunals, and (iii) of public officers, legislative, judicial and executive, of any part of India or of the Commonwealth, or of a foreign country; and (2) public records kept in any State of private documents.
16. Since the document in question viz., FIR is admittedly a public document well within the meaning of Section 74 and the same having not been disputed, the certified copy of the said document is admissible as a secondary evidence as per Section 65 (e).
17. Further, Chapter 5 of the Indian Evidence Act deals with documentary evidence. Section 61 thereof lays down as to proof of contents of documents, which reads as under :
61. Proof of contents of documents. The contents of documents may be proved either by primary or by secondary evidence.
18. The above Section says that contents of the documents may be proved either by primary or secondary evidence. As per Section 62 of the Evidence Act, primary evidence means the document itself produced for the inspection of the court. Section 63 categorises five kinds of secondary evidence. Section 64 lays down that documents must be proved by primary evidence except in the cases mentioned in the following sections. To put the matter briefly, the general rule is that secondary evidence is not admissible until the non-production of primary evidence is satisfactorily proved. However, clause (e) of Section 65, which enumerates the cases in which secondary evidence relating to documents may be given, carves out an exception to the extent that when the original document is a public document secondary evidence is admissible even though the original document is still in existence and available.
19. It is true, as per Section 64 of the Indian Evidence Act, documents must be proved by primary evidence. But, it has an exception to Section 65, which permits secondary evidence in the circumstances referred to above.
20. On the language of Section 87 (1) of the Representation of the People Act, it is clear that the applicability of the procedure provided for trial of suits to the trial of election petitions is not attracted with all its rigidity and technicality. The rules of procedure contained in the CPC apply to the trial of election petitions under the Act with flexibility and only as guidelines. This is held by the Supreme Court in the case of Kailash, relied upon by the petitioner. It means, the provisions of CPC applicable to the trial of suits cannot be made applicable to the trial of election petitions in all fours and the said provisions shall only be taken as guidelines.
21. In this case, the substitution of Document No.8, FIR, with the certified copy is also necessitated for the reason that if this Court upholds the objection of the first respondent and excludes the material from being admitted in evidence and then proceeds with the trial and disposes of the case finally, if the appellate court, when the same question is re-canvassed, could take a different view on the admissibility of that material, in such cases, the appellate court would be deprived of the benefit of that evidence, because that was not put on record by the trial Court. In such a situation, the higher Court may have to send the case back to the trial Court for recording that evidence and then to dispose of the case afresh. Such practices, when realised through the course of long period to be hindrances which impede steady and swift progress of trial proceedings, must be recast or remoulded to give way for better substitutes which would help acceleration of trial proceedings. While permitting the marking of certified copy of document No.8 as an exhibit, this Court also takes note of the objection, which can be decided at the last stage in the final judgment. At the same time, if the Court finds at the final stage that the objection so raised is sustainable, the said evidence shall be excluded from consideration. This is done, following the ratio laid down by the Supreme Court in Bipin Shantilal Panchal's case, cited above.
22. For all the foregoing reasons, the applicant is permitted to substitute the photocopy of Document No.8,FIR, which is marked at the time of filing of the Election Petition, with the certified copy, which shall be marked only as a secondary evidence but not as a primary evidence, as the petitioner has not produced the original before this Court, and to that extent only the said document can be used but not as the original document.
23. Application is disposed of to the extent indicated above. No costs.
Index : Yes 27-03-2013
Internet : Yes
dixit
Note to Office :
Issue order copy
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