apprehension of counsel for Applicant. Proof of a
document is separate aspect. Even if the documents
are treated as primary evidence, the same have to
be strictly dealt with and treated within the
ambit and scope of Section 164 of Cr.P.C. I find
Section 62, Explanation (2) of the Evidence Act
read with Judgment in the matter of Prithi Chand
(supra) applies to present matter. When the
statements under Section 164 of Cr.P.C. were found
to be not traceable, the carbon copies of the
statements have been rightly treated as primary
evidence as they were made by one uniform process.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO.1018 OF 2014
Krishna Sahebrao Patil,
VERSUS
The State of Maharashtra
CORAM: A.I.S. CHEEMA, J.
DATE : 5TH MARCH, 2014
Citation; 2015 ALLMR(CRI)2657
1. This Application is under Section 482 of
the Code of Criminal Procedure, 1973 ( for short
"Cr.P.C.") Notice to Respondent. Learned A.P.P.
waives service for Respondent. Heard finally
learned counsel for the Applicant and learned
A.P.P. for State.
2. In this matter, the trial Court has, by
order dated 31st December, 2013, found that
original statements recorded under Section 164 of
the Cr.P.C." were not available in Nazarat. The
trial Court, after going through the record, found
that original statements of witnesses were not
traceable. After hearing the accused, the trial
Court, relying on the case of Prithi Chand vs.
State of Himachal Pradesh, reported in A.I.R. 1989
S.C. Page 702, held that carbon copy mechanically
prepared while preparing original, will be
original and has treated carbon copies of
statements available on record, as primary
evidence.
. Against the order of the trial Court,
Criminal Revision Petition No.3 of 2014 was filed.
The Additional Sessions Judge, Vaijapur, relied on
Section 62 of the Indian Evidence Act, 1872 (for
short "Evidence Act") and observed that carbon
copies of statements are available and there
appears the signature of Magistrate and the
witness concerned on the copies of statements. The
Additional Sessions Judge observed that to bring
the document within the meaning of Section 62 of
the Evidence Act, the whole of the document with
signatures must have been made in uniform process
and it certainly appears, going through these
statements, that documents with signatures on it
have been made in uniform process. Thus, the
Additional Sessions Judge, by order dated 10th
February, 2014, concurred with the Judicial
Magistrate, First Class and dismissed the
Revision.
3. Now the learned counsel for the Applicant
is submitting that in the matter of Prithi Chand
(supra), which has been relied on by the
subordinate Courts, the facts were different. In
the matter referred, carbon copy was made by one
uniform process of certificate of doctor given in
discharge of professional duty and the lady doctor
herself was not available and it was found that it
would not be possible to secure her presence
without undue delay and therefore the prosecution
was permitted to prove the certificate through
another doctor who was conversant with handwriting
of the said lady doctor. According to the learned
counsel, in those circumstances, carbon copy was
treated as primary evidence.
4. Learned counsel for the Applicant
submitted that by treating the documents as
primary evidence, the documents are being tried to
be relied on.
5. Section 62 of the Indian Evidence Act,
1872 reads as under:"
62. Primary evidence.Primary
evidence means the document itself
produced for the inspection of the
Court.
Explanation 1. Where a document is
executed in several parts, each part
is primary evidence of the document.
Where a document is executed in
counterpart, each counterpart being
executed by one or some of the
parties only, each counterpart is
primary evidence as against the
parties executing it.
Explanation 2.Where
a number of
documents are all made by one
uniform process, as in the case of
printing, lithography or
photography, each is primary
evidence of the contents of the
rest; but, where they are all copies
of a common original, they are not
primary evidence of the contents of
the original."
6. I do not find substance in the
apprehension of counsel for Applicant. Proof of a
document is separate aspect. Even if the documents
are treated as primary evidence, the same have to
be strictly dealt with and treated within the
ambit and scope of Section 164 of Cr.P.C. I find
Section 62, Explanation (2) of the Evidence Act
read with Judgment in the matter of Prithi Chand
(supra) applies to present matter. When the
statements under Section 164 of Cr.P.C. were found
to be not traceable, the carbon copies of the
statements have been rightly treated as primary
evidence as they were made by one uniform process.
I do not find anything wrong in the order of the
Magistrate as well as the Additional Sessions
Judge, so as to invoke inherent jurisdiction under
Section 482 of Cr.P.C., to interfere in the
impugned orders.
7. For the reasons stated above, Criminal
Application is rejected.
[A.I.S.CHEEMA,J.]
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