Station Vivek Vihar, Delhi for the offence of cheating etc. in which
respondent-State’s application for secondary evidence stands allowed
vide impugned order of 17th October, 2014. Respondent-State has been
permitted to lead secondary evidence in respect of original documents
along with FSL report which was collected by Investigating Officer-SI
Rajinder Singh Special Branch (North) from FSL Chandigarh.
At the hearing, learned counsel for petitioners had relied upon
decisions in Surinder Kaur v. Sadar Mangal Singh & Ors. 158 (2009)
DLT 1, Benga Behera & Anr. v. Braja Kishore Nanda & Ors. VI (2007)
SLT 252, Smt. Sulochana Devi Bubna v. Gobinda Chandra Nag & Ors.
AIR 1986 Calcutta 430, Mt. Atra Devi v. Ramswaroop Prasad Singh &
Ors AIR 1972 Patna 186, Mohanlal San & Anr. v. Samal Ram Potdar &
Ors AIR 1961 Patna 300, Smt. Bobba Suramma v. Smt. Peddireddi
Chandramma AIR 1959 Andhra Pradesh 568 and Jaldu Ananta Rahuram
Arya & Ors. v. Rajah Bommadevara Nagar Chayadevamma & Ors. AIR
1958 Andhra Pradesh 418 to submit that secondary evidence can be
allowed only when sincere efforts have been made to locate the
documents and not otherwise. Learned counsel for petitioners had drawn
the attention of this Court to application of 31st July, 2013 filed by the
Investigating Officer to point out that in this application it is vaguely
submitted by the Investigating Officer that he had handed over the FSL
report and original documents either to Naib Court or to Ahlmad of the
Court but they are not on record and had sought permission to lead
secondary evidence in respect of FSL report and the original documents.
According to learned counsel for petitioners, aforesaid averments do not
satisfy the requirements of Section 65(c) of the The Indian Evidence Act,
1872 and so impugned order allowing application for secondary evidence
of respondent-State deserves to be quashed.
Upon hearing and on perusal of the impugned order, application
filed, material on record and the decisions cited, I do find that such like
applications are not to be routinely allowed and the factum of loss of
documents has to be established.
IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: August 12, 2015
CRL.M.C. 5823/2014
MAHINDEER KAUR & ORS V STATE (NCT DELHI) & ANR .
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
For the reasons stated in the application, application is allowed and
petition is restored to its original number.
Petitioners are facing trial in FIR No.259/2005 registered at Police
Station Vivek Vihar, Delhi for the offence of cheating etc. in which
respondent-State’s application for secondary evidence stands allowed
vide impugned order of 17th October, 2014. Respondent-State has been
permitted to lead secondary evidence in respect of original documents
along with FSL report which was collected by Investigating Officer-SI
Rajinder Singh Special Branch (North) from FSL Chandigarh.
At the hearing, learned counsel for petitioners had relied upon
decisions in Surinder Kaur v. Sadar Mangal Singh & Ors. 158 (2009)
DLT 1, Benga Behera & Anr. v. Braja Kishore Nanda & Ors. VI (2007)
SLT 252, Smt. Sulochana Devi Bubna v. Gobinda Chandra Nag & Ors.
AIR 1986 Calcutta 430, Mt. Atra Devi v. Ramswaroop Prasad Singh &
Ors AIR 1972 Patna 186, Mohanlal San & Anr. v. Samal Ram Potdar &
Ors AIR 1961 Patna 300, Smt. Bobba Suramma v. Smt. Peddireddi
Chandramma AIR 1959 Andhra Pradesh 568 and Jaldu Ananta Rahuram
Arya & Ors. v. Rajah Bommadevara Nagar Chayadevamma & Ors. AIR
1958 Andhra Pradesh 418 to submit that secondary evidence can be
allowed only when sincere efforts have been made to locate the
documents and not otherwise. Learned counsel for petitioners had drawn
the attention of this Court to application of 31st July, 2013 filed by the
Investigating Officer to point out that in this application it is vaguely
submitted by the Investigating Officer that he had handed over the FSL
report and original documents either to Naib Court or to Ahlmad of the
Court but they are not on record and had sought permission to lead
secondary evidence in respect of FSL report and the original documents.
According to learned counsel for petitioners, aforesaid averments do not
satisfy the requirements of Section 65(c) of the The Indian Evidence Act,
1872 and so impugned order allowing application for secondary evidence
of respondent-State deserves to be quashed.
Upon hearing and on perusal of the impugned order, application
filed, material on record and the decisions cited, I do find that such like
applications are not to be routinely allowed and the factum of loss of
documents has to be established. No doubt, the Investigating Officer of
this case is not sure as to whether he had given the FSL report to Naib
Court or Ahlmad of the Court but one thing is certain that FSL report and
original documents are not on trial court’s record. The fact of FSL report
and the original documents missing stands very much established and so
the decisions relied upon by petitioners’ counsel are of no avail.
Finding no substance in this petition, the petition is dismissed
while not commenting upon evidentiary value of the documents in respect
of which secondary evidence has been allowed.
(SUNIL GAUR)
JUDGE
AUGUST 12, 2015
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