SUKHRAJ Vs. STATE OF U P

JUDGEMENT

(1.) THIS criminal revision by Sukhraj and 19 others is directed against the order dated 12-3-1980 of the then II Additional Munsif Magistrate in Criminal Case No. 1393 of 1979, Kamta v. Sukhraj, summoning the revisionists. It is prayed that the order may be set aside and quashed.

(2.) IT would appear that an earlier complaint was filed by the complainant, opposite party no. 2, against the revisionist regarding the same alleged incident and the complaint in question was dismissed on 9-7-1979, after recording statements under Sections 200 and 202, CrPC, observing that neither any first information report, nor any injury report has been filed and the complaint is not worth summoning the accused persons. Thereafter on a fresh complaint, the Magistrate passed the impugned order dated 12-3-1981. In that order itself a reference has been made to the earlier order of the dismissal of the complaint. The Magistrate, however, observed that a carbon copy of the application preferred by the complainant to the Superintendent of Police Ghazipur, on 10-5-1979 has been filed and it explains the non-filing of any report at the Police Station itself. With such observations and making mention of the witnesses produced and also referring to the carbon copy, the Magistrate proceeded to summon the revisionists under various sections.

(3.) IN the present case, on a perusal of the statement of the complainant under Section 200, CrPC as well as on the perusal of his affidavits furnished before the Magistrate, I do not find any explanation why the copy of complaint to S. P. furnished in support of the second complaint was not filed when the first complaint was pending. It is not shown that it could not with reasonable diligence be adduced in the proceedings relating to the first complaint. The complainant could have easily filed it, when the first complaint was entertained and heard at the stage of Section 202, CrPC. The carbon copy that has been filed also could not be looked into. INdian Evidence Act expressly provides that secondary evidence can be entertained only on a proof that primary evidence is not available. IN case of any document, it should be established that the original is not available or could not be procured for any convincing reasons and only then any copy of such original can be entertained. The original in the present case could have easily been summoned from the office of the Superintendent of Police concerned, which has not been done. Secondly, the formal proof of the copy is also lacking.