The High Court dismissed a petition seeking to adduce secondary evidence of an application alleged to be dated 08.01.2002. The court held that the petitioners failed to prove the existence of the document or lay the proper foundation required under Section 65 of the Evidence Act.
Petition dismissed in limine.
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
**Crl. Misc. No. 18253-M of 2009 (O&M) Date of Decision: 10.7.2009 *****
Malkiat Ram etc.
.. Petitioners
Vs.
Smt. Krishna Devi
.. Respondent.
CORAM: HON'BLE MR. JUSTICE ARVIND KUMAR,
**Present:Mr. J.B.S. Gill, Advocate for the petitioners. *****
ARVIND KUMAR, J.
The petitioners are aggrieved with the order dated 31.3.2009 passed by the learned trial court by virtue of which their application under Section 65 of Evidence Act to prove the application dated 8.1.2002 by way of secondary evidence, has been dismissed.
A look at Section 65 of the Act is necessary for the decision of controversy raised in this case and a perusal thereof would show that secondary evidence of existence, condition or contents of a document can also be adduced when the party offering evidence of its contents cannot produce the original in reasonable time. To succeed in getting permission to adduce secondary evidence it must be shown that the document was in existence which was capable of being proved by secondary evidence and secondly proper foundation must be laid to establish the right to adduce secondary evidence. It is in the absence of the best evidence that the secondary evidence is allowed to be adduced because the object of judicial investigation by Court is to fathom the truth. Therefore, the law although insists upon production of the best evidence i.e. the original document yet it permit with proper safeguards the production of the secondary evidence of the original if certain conditions are satisfied, namely, the existence of the document which might have been lost or destroyed or the party in whose possession the original is shown or appears to be-have refused to produce it
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before the Court despite notice or its existence, condition or contents have been proved to be admitted in writing so on and so forth. The rule regarding secondary evidence is not an open rule allowing any piece of photostat copies or an oral account of the original and the likewise to be tendered as secondary evidence.
In the present case, no doubt the petitioners summoned the record pertaining to the application dated 8.1.2002, but as per deposition made by HC Balwinder Singh, no such application was traceable due to shifting of Police Station Nawanshahr. However, it is also apparent that the petitioners have not mentioned any DDR number etc. to show that the said application was ever acted upon by the police. The petitioners have also not even mentioned any dispatch number of the said application. Even it has not been shown that the application dated 8.1.2002 being admitted. Thus, the existence of application dated 8.1.2002 has not been proved by the petitioners, rightly leading to the Court below to dismiss their application moved in this regard.
In the above facts, no fault could be found with the approach of the learned trial court while dismissing the application of the petitioners. The instant petition being without any merit is dismissed in limine.
(ARVIND KUMAR) JUDGE
July 10,2009 Jiten
3 issues framed by the court
Whether the petitioners could produce secondary evidence of an application alleged to have been lodged on 08.01.2002.
The existence of the application and failure toestablish proper foundation for secondary evidence.
Validity of trial court dismissal for non-existence of primary case.
1 provisions across 1 enactments
Malkiat Ram etc.
Smt. Krishna Devi
Arvind Kumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
