AJAY GUPTA Vs. STATE OF M.P.

JUDGEMENT

(1.) BY this Criminal Revision under Section 397 and 401 of the Cr.P.C., petitioner Advocate Ajay Gupta is aggrieved by the order dated 8/7/2009 passed by the Special Judge (Prevention of Corruption Act) Ujjain in M.J.C. No. 1/2009 as well as the order dated 15/6/2010 passed by the District and Sessions Judge, Ujjain in M.J.C. No. 100/2010 and the order dated 27/7/2010 passed in M.J.C. No. 11/2010 by the Special Judge (Prevention of Corruption Act) Ujjain refusing to hear the matter.

(2.) BRIEFLY stated the facts of the case are the accused persons were being proceeded under the Prevention of Corruption Act. It was alleged that they were caught red handed and prior to the raid a demand of bribe was discussed by the complainant (petitioner) and the accused persons and recorded on the cassettes and the same had been produced as article K, article U and article N and the transcript of the conversation was also produced in the lower Court concerned. However, when the cassettes were produced in the Court, article K and article U did not emit any sound and the sounds emitted on the article N were compared with the transcript and recorded for evidence. Public Prosecutor Jahir Khan has filed an application under Section 91 of the Cr.P.C. stating that three copies of the cassettes articles K, U and N were prepared on 30/8/2006. One of its copies was given to the accused persons, one copy was given to the Investigating Officer and the copy of the cassettes were submitted in the Court. Articles K and U did not emit any sound. There was conversation in the transcript and hence the copy of the cassette article N, which contains the conversation, should be considered as secondary evidence. The same was objected by the Counsel for the accused and he submitted that the cassettes were placed before the Court below and if there was tampering they should be proved in accordance with the law. Moreover, it is contended that when the original was lost then only the secondary evidence should be considered in accordance with the Evidence Act. Whereas it was contended by the complainant that all the three cassettes were kept in original according to the proceedings and the same have to be placed in muddemaal treasury however, the same were not placed in the muddemaal treasury because it was late in the evening and the three articles were given to the clerk to be kept in his custody and only on the next day they have been deposited and thus there was tampering and proper enquiry should have been conducted.

(3.) BY the impugned order dated 27/7/2010 Counsel submitted that the Special Judge (Prevention of Corruption Act) Ujjain has held that the cassettes would be a secondary piece of evidence and proper application be filed. And hence the present petitioner has filed the application for accepting the copies of the secondary evidence. The application was resisted by the respondents. Thereupon the petitioner has moved an application that an enquiry be conducted, as to how the cassettes have been tampered with and the trial Court vide order dated 8/7/2009 in M.J.C. No. 1/09 closed the enquiry. Petitioner urged that the enquiry was incomplete and on extraneous consideration. Therefore, further enquiry is necessary. Even the then District and Sessions Judge, Ujjain in M.J.C. No. 100/2010 by the impugned order dated 15/6/2010 and the Special Judge (Prevention of Corruption) in M.J.C. No. 11/2010 by the order dated 27/7/2010 refused to conduct the enquiry. And hence the present petition.