RAMBHAU SHAMRAO KHADILKAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE applicant challenges an order dated 25-2-2002 passed by the Ist Ad hoc Additional Sessions Judge, Gondia, in S. T. No. 63/1999, whereby he has issued a show cause notice under section 349 of the Criminal Procedure Code to the applicant, asking him to show cause as to why action should not be initiated against the applicant under section 349 and as to why he should not be committed to the custody of a Court not exceeding seven days. The application further challenges an order dated 4-4-2002 passed by the same Court in the same case below Exhibit 4, which is an application made by the applicant for grant of permission to adduce secondary evidence in the case under section 65 of the Indian Evidence Act, 1872 by allowing his application.

(2.) INSOFAR as the order dated 4-4-2002 is concerned, the same has rightly been passed by the learned Sessions Judge, Gondia because it is not for a witness to seek the Courts permission to adduce secondary evidence. Such application, if any, ought to have come from the side of the prosecution. Insofar as the impugned order dated 25-2-2002 is concerned, it appears from the record that the document which was summoned by the Court was an order passed in Revenue Case No. 538/mrc-81/98/99. It is clear from the record that the prosecution in the case filed a pursis saying that the said document was lost. When the document is lost, it cannot be said that the document is in the power or possession of the applicant, who is an officer, who has succeeded the officer who had passed the order in the said case. It is pertinent to note that the Collector, Gondia has also confirmed that the said order is lost. In the circumstances, the only course left open for the prosecution was to lead secondary evidence. The coercive order for production of a document which is lost, would serve no purpose whatsoever.

(3.) IN the circumstances, I am inclined to quash and set aside the order dated 25-2-2002 passed by the Ist Ad hoc Additional Sessions Judge, Gondia, subject to the direction that prosection will be at liberty to make an application for leading secondary evidence in accordance with the relevant provisions of the Indian Evidence Act. Rule is made absolute accordingly. Rule made absolute.