SUDHAKAR DINKAR MALEKAR Vs. HEMU PRABHUDAS THAKUR

JUDGEMENT

(1.) THIS is an application by original accused Nos. 2, 3 and 4 for setting aside the order dated November 26, 1980 passed by the learned Addl. Sessions Judge, directing that the case to proceed on secondary evidence. During the course of arguments an amendment was sought which was granted and by the amendment a prayer has been made that the proceedings in Sessions Case No -. 73 of 1977 should be quashed.

(2.) THIS rule involves a question as to whether noncompliance with the provisions of Section 173(5)(a) and (b) and Section 207 of the Criminal Procedure Code affects the legality of the proceedings.

(3.) IT appears that the case was committed to the Court of Session by an order dated March 9, 1977. On May 23, 1978 an application was made by the learned Advocate for the accused before the learned Addl. Sessions Judge for depositing original police papers pertaining to the Sessions case in that Court. Thereafter on May 26, 1978 police inspector Desai handed over all the documents to the court sheristedar attached to the Court of the learned Addl. Sessions Judge Shri Kirtikar. It appears that after February 3, 1979, those papers were not traceable and inspite of search being taken the police papers are not yet traceable. The applicants filed Criminal Application No. 599 of 1980 in this Court on the ground that in the absence of original documents, the trial cannot have any effective hearing and, in fact, the trial cannot go on and, therefore, it would practically amount to vitiating the trial. It was contended that the statutory requirement as envisaged by Section 173(5) of the Criminal Procedure Code that all the documents should be forwarded to the court and in the absence of the original documents, there could hardly be any scope for hearing of the Sessions case. On that application two points were raised viz. (1) Whether the original police papers, are genuinely missing and not available or whether it is only a camouflage adopted by the police to serve their purpose? and (2) What is the effect thereof and whether the trial can proceed on the basis of secondary evidence? And the matter was remanded to the learned Addl. Sessions Judge for proceeding in the matter as directed. Accordingly, the learned Addl. Sessions Judge considered the two points and held that the original police papers are genuinely missing and on the second point it was held that the effect of missing of original papers would be that the prosecution cannot lead primary evidence but that the prosecution may be permitted to lead secondary evidence and, accordingly, an order was passed directing that the case to proceed on secondary evidence. Against the said order, the applicants have preferred this application.