Case BriefsHigh Courts

Delhi High Court: Sanjeev Sachdeva, J. while holding that no prejudice was caused to the petitioner, dismissed his petition filed against the order of the trial court whereby it had allowed an application filed by the Narcotic Control Bureau under Section 65 of the Evidence Act, 1872.

Subject application was filed by the Bureau contending that some relevant files, required for the purposes of prosecution, were misplaced and therefore permission was sought to lead secondary evidence. The application was allowed by the trial court. Aggrieved thereby, the petitioner filed the present criminal revision petition.

In the High Court’s opinion: “…. no application is required to be filed by a party seeking permission under Section 65 Indian Evidence Act to lead secondary evidence.” It was held: “merely because an application under Section 65, Indian Evidence Act was filed and allowed, would not ipso facto make secondary evidence admissible, which is otherwise inadmissible.” The law on the subject was explained by the Court thus:

Section 61 of the Indian Evidence Act lays down that contents of a document may be proved by primary or secondary evidence. Section 63 defines Secondary Evidence. Section 64 provides that documents must be proved by primary evidence, except in cases thereafter mentioned i.e. in Section 65, Section 65 A and Section 65 B.

Section 65, Indian Evidence Act, permits secondary evidence to be led in the contingencies mentioned therein. Section 65 does not contemplate the filing of any application or seeking prior permission of the court for leading secondary evidence.

A party producing secondary evidence before a court has to satisfy the conditions mentioned in Section 65 of the Indian Evidence Act and only when the conditions of Section 65, Indian Evidence Act are satisfied, secondary evidence would be admissible.

While adducing secondary evidence, a party shall have to lead evidence firstly to show the existence of the contingency or situation stipulated in Sections 65 and 65B, as the case may be and Secondly lead evidence in proof of the said document.

Only after the evidence is led before the court, would the court be in a position to form an opinion as to whether circumstances/situation, as stipulated under Section 65 Indian Evidence Act, making secondary evidence admissible, exist or not.”

In such view of the matter, it was found that the impugned order neither favoured the Bureau nor prejudiced the petitioner. Therefore the petition was dismissed. However, it was clarified that the Bureau would have to lead evidence to show the requirements of Section 65 were satisfied prior to the secondary evidence being admissible. [Satyam Kumar Sah v. Narcotic Control Bureau, 2019 SCC OnLine Del 8409, decided on 06-05-2019]

Case BriefsSupreme Court

Supreme Court: In a matter where the Gujarat High Court had set aside the order passed by a Chief Judicial Magistrate who had taken cognizance of the offences punishable under Sections 420, 465, 467, 468, 471, 477A and 120-B IPC on the basis of the second supplementary charge sheet filed by the police and ordered issuance of process to the accused, the bench of R. Banumathi and Indira Banerjee, JJ held that the High Court ought not to have gone into the merits of the matter when the matter is in nascent stage.

Holding that the High Court overstepped in the said matter, the bench said:

“When the prosecution relies upon the materials, strict standard of proof is not to be applied at the stage of issuance of summons nor to examine the probable defence which the accused may take. All that the court is required to do is to satisfy itself as to whether there are sufficient grounds for proceeding.”

Stating that while hearing revision under Section 397 Cr.P.C., the High Court does not sit as an appellate court and will not reappreciate the evidence unless the judgment of the lower court suffers from perversity, the bench said:

“materials produced by the prosecution ought not to have been brushed aside by the learned Single Judge to quash the order of issuance of summons to the respondent-accused. As to whether these evidences are sufficient to sustain the conviction of the respondent-accused or whether he has a plausible defence or explanation is the matter to be considered at the stage of trial. The learned Single Judge ought not to have weighed the merits of the case at the initial stage of issuance of summons to the accused.”

The Court explained that while taking cognizance of an offence based upon a police report, it is the satisfaction of the Magistrate that there is sufficient ground to proceed against the accused and when the satisfaction of the Magistrate was based on the charge sheet and the materials placed before him, the satisfaction cannot be said to be erroneous or perverse and the satisfaction ought not to have been interfered with.

It was, hence, held that the High Court committed a serious error in going into the merits and  demerits of the case and hence, the impugned order was set aside. [State of Gujarat v. Afroz Mohammed Hasanfatta, 2019 SCC OnLine SC 132, decided on 05.02.2019]

Case BriefsHigh Courts

Bombay High Court: A Single Judge Bench comprising of Shalini Phansalkar Joshi, J. heard a petition challenging the order of the trial court that had allowed admission of letters by the respondent as secondary evidence. The petitioner contended that there was nothing on record to show that those letters had been issued by the respondent and the respondent’s contention that they were in the possession of the petitioner was also not true. Therefore, the petitioner requested that the application seeking request to produce letters in the form of secondary evidence be rejected.

The Court upheld the decision of the trial court allowing the respondent to produce secondary evidence stating that the necessary foundation for production of the secondary evidence had been established but merely because the respondent was allowed to lead secondary evidence does not imply that they will be exhibited or admitted in evidence.

Therefore, the issue as to admitting them in evidence had been left open by the trial court and the High Court to be dealt with at an appropriate stage and the petition was dismissed. [Rajendra Mahadev Todkar v. M/s Paranjape Schemes (Construction) Company Limited, 2018 SCC OnLine Bom 15, order dated 05-01-2018]