DR. DINESH Vs. THE STATE OF MADHYA PRADESH

JUDGEMENT

(1.) The applicant has invoked the extraordinary jurisdiction of this Court under section 482 of Code of Criminal Procedure, 1973 (for short 'The Code'), against the order dated 13/12/2016, passed by the Second Additional Sessions Judge, Barwani in Criminal Case No.90/2016, whereby the order passed by the Judicial Magistrate First Class, Barwani in Criminal Case No.211/2014 has been affirmed, by which the application filed by the respondent/State under section 65 of the Indian Evidence Act, 1872 (for short 'the Act') has been allowed.

(2.) The facts in short leading to filing of this application are that the respondent/State has filed a criminal complaint under Section 28 of Pre-Conception and Pre-Natal Diagnostic Techniques Act, 1994 (in brevity 'PC and PNDT Act') against the applicant alleging that on 12/01/2012 the respondent/State conducted inspection in the premises of the applicant and found that he has committed violation of provisions of 'PC and PNDT Act'. In this regard inspection report/panchnama was prepared. The trial Court framed charges against the applicant and the matter was fixed for recording of the evidence of the prosecution/respondent. During the trial, respondent/State filed an application under Section 65 of 'the Act' stating that Tehsildar Susri Janki Yadav has prepared the inspection report/panchnama and she has sent the original panchnama to Collector, Barwani and other officers, therefore, in the record, the original panchnama was not found, hence, a prayer for adducing secondary evidence of the said documents was made. The applicant opposed the application by contending that photocopy of the document is not a copy of original document and there was no mention that through which source the photocopy was prepared. However, the said application was allowed by the Judicial Magistrate First Class. Being aggrieved with the aforesaid order, the applicant preferred a revision petition before the Second Additional Sessions Judge, Barwani, who dismissed the same vide order dated 13/12/2016, which is the subject matter to challenge before this Court.

(3.) Learned counsel for the applicant has submitted that the Courts below have committed error by without recording the satisfaction regarding loss of original document permitted the respondent/State to lead secondary evidence. They have also not considered the fact that photocopy is neither the primary evidence nor secondary, therefore, the parties are required to prove when and where the photocopy was taken and whether it is the same and exact copy of the original one. In the present case, respondent has failed to prove that the photocopy was taken through mechanical process and it is exact and same copy of the original one. In the absence of the aforesaid averments, the Courts below have wrongly allowed the application of the respondent/State.