IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:10.08.2011 CORAM THE HON'BLE MR.JUSTICE T.SUDANTHIRAM CRL.O.P.No.12261 of 2011 and M.P.No.1 of 2011 U.Shankar .. Petitioner/A.1 .. Vs .. State Represented by, The Sub-Inspector of Police, Salavakkam Police Station, Kancheepuram District. (Crime No.197 of 2006) .. Respondent/Complainant Prayer:- Criminal Original Petition filed under Section 482 of the Code of Criminal Procedure praying to set aside the order dated 08.04.2011 passed in M.P.No.1512 of 2010 in C.C.No.40 of 2007 pending on the file of the learned District Munsif-cum- Judicial Magistrate, Uthiramerur. For Petitioner : Mr.M.Deivanandam For Respondent : Mr.M.Mohamed Riyaz, Government Advocate (Crl.Side) ORDER The petitioner herein is the first accused in C.C.No.40 of 2007 on the file of the learned District Munsif-cum-Judicial Magistrate, Uthiramerur and he is facing charges for the offences under Sections 379 and 420 I.P.C. r/w. Section 21(1) of Mines and Minerals Act. An application was filed by the prosecution before the trial Court under Section 311 Cr.P.C., praying to recall P.Ws.1 and 2 and to mark the documents viz., MTC Receipt Book and out pass book through them. The said application was allowed by the learned Magistrate by his order dated 08.04.2011 on the ground that the documents which were sought to be marked were important for the prosecution. Challenging the said order, the petitioner had preferred this Criminal Original Petition before this Court. 2. Learned counsel for the petitioner submits that though it was mentioned in the application filed by the prosecution that they wanted to file the original documents, actually the documents available are only carbon copies and not the originals. It is further submitted by the learned counsel for the petitioner that the carbon copies of the original documents cannot be https://hcservices.ecourts.gov.in/hcservices/ marked, since they are only secondary evidence and as per the procedure laid down under Section 62 of the Indian Evidence Act, the secondary evidence cannot be permitted to be marked. 3. Learned Government Advocate (Crl.Side) submits that though the documents, which are to be marked by the prosecution, are carbon copies, they are also only original documents, since the carbon copies were made by one uniform process and as such, they are primary evidence within the meaning of Explanation 2 to Section 62 of the Indian Evidence Act. 4. This Court has considered the submissions made by the learned counsel on either side and perused the records. 5. The learned Magistrate has permitted to recall P.Ws.1 and 2, who were already examined, and to mark the documents through them. Though the documents available are only carbon copies, as per Explanation 2 to Section 62 of the Indian Evidence Act, those carbon copies are to be taken as primary evidence. 6. Section 62 of the Indian Evidence Act is as follows:- "62. Primary Evidence.- Primary evidence means the document itself produced for the inspection of the Court. Explanation 1. Where a document is executed in several parts, each part is primary evidence of the document: Where a document is executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it. Explanation 2. Where a number of documents are all made by one uniform process, as in the case of printing, lithography or photography, each is primary evidence of the contents of the rest; but, where they are all copies of a common original, they are not primary evidence of the contents of the original." 7. It is observed by the Hon'ble Supreme Court in the decision reported in (1989) 1 Supreme Court Cases 432 (Prithi Chand Vs. State of Himachal Pradesh) as follows:- "Besides, since the carbon copy was made by one uniform process the same was primary evidence within the meaning of Explanation 2 to Section 62 of the Evidence Act." 8. There is no illegality or error in the order passed in M.P.No.1512 of 2010 in C.C.No.40 of 2007 by the learned District Munsif-cum-Judicial Magistrate, Uthiramerur, on 08.04.2011. https://hcservices.ecourts.gov.in/hcservices/ Hence, this Criminal Original Petition is dismissed. Consequently, the connected miscellaneous petition is also dismissed. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. jrl To 1. The District Munsif-cum-Judicial Magistrate, Uthiramerur. 2. The Sub-Inspector of Police, Salavakkam Police Station, Kancheepuram District. 3. The Public Prosecutor, High Court, Madras. 1 cc to Mr.M.Deivanandam, Advocate, Sr. 49311 CRL.O.P.No.12261 of 2011 SR (CO) kk 30/8 https://hcservices.ecourts.gov.in/hcservices/