Case Note & Summary
The petitioner, accused no. 7 in Regular Criminal Case No. 337 of 2009 pending before the Chief Judicial Magistrate, Nanded, challenged the order dated 02 April 2018 passed below Exhibit 329, whereby the trial court granted permission to the prosecution to produce secondary evidence of the audit report. The petitioner contended that the application was vague and general, with no specific mention of efforts made to search for the original document, and was not supported by an affidavit. The High Court, after hearing the parties, found that the application lacked the necessary foundation required under Section 65 of the Indian Evidence Act, 1872 for leading secondary evidence. The court held that the order was unsustainable and set it aside, allowing the petition. The court directed the trial court to decide the application afresh after giving an opportunity to the prosecution to file a proper application supported by an affidavit.
Headnote
A) Evidence Law - Secondary Evidence - Section 65 Indian Evidence Act, 1872 - Permission to lead secondary evidence of audit report granted without proper foundation - The application was vague and did not specify efforts made to search for the original document, nor was it supported by an affidavit - Held that the order granting permission was unsustainable and set aside (Paras 2-4).
Issue of Consideration
Whether the trial court was justified in granting permission to the prosecution to lead secondary evidence of the audit report without a proper foundation being laid as required under Section 65 of the Indian Evidence Act, 1872.
Final Decision
The High Court allowed the petition, set aside the order dated 02 April 2018, and directed the trial court to decide the application afresh after giving an opportunity to the prosecution to file a proper application supported by an affidavit.
Law Points
- Secondary evidence
- Section 65 Indian Evidence Act
- 1872
- foundation for secondary evidence
- vague application
- affidavit requirement
Case Details
2018 LawText (BOM) (06) 9
Criminal Writ Petition No. 666 of 2018
Mr. R.S. Wani for petitioner, Ms. R.P. Gaur A.P.P. for respondent State
Sandeep Komalsingh Rajput
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Nature of Litigation
Criminal writ petition challenging order granting permission to lead secondary evidence
Remedy Sought
Petitioner sought setting aside of order dated 02 April 2018 granting permission to prosecution to produce secondary evidence of audit report
Filing Reason
The application for secondary evidence was vague, lacked specifics about efforts to locate original, and was not supported by affidavit
Previous Decisions
Trial court granted permission to lead secondary evidence vide order dated 02 April 2018
Issues
Whether the trial court was justified in granting permission to lead secondary evidence without proper foundation
Submissions/Arguments
Petitioner argued that the application was vague and general, with no specific mention of efforts to search for the original document, and not supported by affidavit
Ratio Decidendi
For leading secondary evidence under Section 65 of the Indian Evidence Act, 1872, a proper foundation must be laid by specifying the efforts made to search for the original document, and the application should be supported by an affidavit. A vague and general application without such details is insufficient.
Judgment Excerpts
The application (Exh. 329) is very vague and general. There is no specific mention as to what efforts were made to search out the original document.
Moreover, the said application is not supported by the affidavit...
Procedural History
The petitioner, accused no. 7 in Regular Criminal Case No. 337 of 2009 pending before the Chief Judicial Magistrate, Nanded, challenged the order dated 02 April 2018 passed below Exhibit 329 granting permission to the prosecution to lead secondary evidence of the audit report. The High Court heard the matter and allowed the petition.
Acts & Sections
- Indian Evidence Act, 1872: Section 65
