RAM PRASAD MORAL Vs. EMPEROR

JUDGEMENT

(1.) The appellants Ram Prasad and Aklu Bania have been convicted of an offence under Rule 56 (4), Defence of India Rules, namely, participating in a procession alleged to have been banned by ah order of the District Magistrate made under Rule 56. We are informed that since the conviction the appellant Ram Prasad has been released by an order of the Governor of the Province under Section 401, Criminal P.C.

(2.) The only point that need be considered is whether the prosecution has proved the order of the District Magistrate banning processions. What the prosecution has done is to produce a piece of paper, which is a type-written order purporting to be under Rule 56 and purporting to be made by the District Magistrate. There is no signature of the District Magistrate on the document. His name is typed there over the words "District Magistrate, Purnea." Nor is there any certificate that this is a certified copy of the order made by the District Magistrate. Although this Court has on many occasions drawn attention to the necessity of proving in a legal manner orders on which the prosecution relies for proof of the commission of an offence, very little attention appears to be paid to the matter by the persons responsible for conducting, prosecutions. I propose, therefore, to endeavour once again to point out the relevant provisions of the Evidence Act. Section 61 provides that the contents of documents may be proved either by primary or by secondary evidence. But Section 64 declares that documents must be proved by primary evidence except in the cases thereinafter mentioned. The circumstances in which secondary evidence may be given and the nature of such evidence is described in Section 65, Clause (e) of which states that secondary evidence may be given when the original is a public document within the meaning of Section 74, but that in such a case the only secondary evidence admissible is a certified copy of the original. In regard to this matter attention is invited to the decision of the Privy Council in Easwaramurthi Goundan V/s. Emperor . An order of a District Magistrate under Rule 56, Defence of India Rules, is a public document. It follows that the only manner in which such a document may be legally proved is by production of the original or by a certified copy of the original. As the document relied on in the present case as the basis for the conviction of the appellant has riot been proved in a legal manner, the convictions must be set aside and the appellant Aklu released. Let this order of release be communicated to the District Magistrate at once. Meredith, J.

(3.) I agree.