Court No. - 49
Case :- APPLICATION U/S 482 No. - 6643 of 2021 Applicant :- Shivendra Singh Opposite Party :- State of U.P. and Another Counsel for Applicant :- R.P.S. Chauhan Counsel for Opposite Party :- G.A.
Hon'ble Vivek Agarwal,J.
1. Applicant has filed this petition challenging the order dated 8.1.2020 passed by Juvenile Justice Board, Rampur in Case No. 22 of 2019 originating from Case Crime No. 446 of 2017 under sections 354, 323, 504, 506 IPC, police station - Tanda, District Rampur on the ground that instead of filing original medical documents of the victim, only certified copies have been enclosed before the Juvenile Justice Board and therefore they being in the nature of secondary evidence could not have formed basis for taking cognizance in the matter.
2. Counsel is also aggrieved of the order dated 5.3.2020 passed by the court of learned Sessions Judge, Rampur in Criminal Appeal No. 12 of 2020 whereby appeal challenging the order dated 8.1.2020 on the ground of aforementioned, has been rejected on the ground that original documents are available alongwith charge sheet in the Court of CJM, Rampur where non juvenile accused Shivendra Singh, Chhatrapal Singh and Santosh are being trying whereas original charge sheet and FIR is on record of the Juvenile Justice Board and certified copy of the other papers of the Investigating Officers are available on record.
3. Counsel for the applicant submits that he had submitted an inquiry form to receive information on which Juvenile Justice Board vide 11.12.2019, informed that records of the medical of the victim dated 24.6.2017, has not been filed in original. On the basis of this submission, it is pointed out that as certified copies will fall in definition of secondary evidence as defined under section 63 of the Evidence Act and reading Explanation- II under section 62 of the Indian Evidence Act, it is submitted that no order of cognizance could have been passed on the basis of certified copies of the medical report of the prosecutrix / victim.
4. Learned AGA submits that in terms of second provisions contained in Section 74 of the Indian Evidence Act, medical report of the victim is a public document and therefore even a certified copy of such public document is admissible in law.
5. After hearing learned counsel for the parties, the only issue which is relevant to the present controversy is to the effect that whether Juvenile Justice Board was authorized to take cognizance of the offence on the basis of certified copied of documents original, which have been already filed before the learned Chief Judicial Magistrate, Rampur where trial is going on against other co-accused persons who are not juvenile?
6. Law in regard to cognizance is well settled. It is also well settled that admissibility of document either as primary evidence or as secondary evidence is to be seen at the time when parties are required to lead evidence. It is settled that a party desiring to lead secondary evidence must do so before the Judge recording evidence. Thus judge recording evidence who must decide if any objection as raised, whether or not to allow secondary evidence in evidence. It is always open for the party to lead secondary evidence before the Judge recording evidence / hearing the matter without taking out such an application. For reference please see law laid down in case of Indian Overseas Bank Vs. Trioka Textile Industries; AIR 2007 Bombay 24. Thus issue of admissibility of a document as secondary evidence as public document will arise only when evidence is led before the competent court and not at the stage of taking cognizance where prima facie satisfaction is to be drawn by the court concerned taking cognizance of the matter. If need be, on an appropriate application original record for the purpose of marking of exhibits in the case can always be summoned by the concerned Juvenile Court from the court where matter is committed in regard to non juvenile person. Therefore, at this stage no adverse inference is required to be drawn against impugned order taking cognizance on the basis of certified copies of the medial reports produced from a competent court. Therefore, application fails and is dismissed.
Order Date :- 28.7.2021 S.K.S.