IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1367 of 2008 MEENA DEVI Versus MADHAVANAND SAHAY & ORS ----------- 2 27/8/2008 Heard counsel for the petitioner. Counsel for the petitioner has produced photocopy of the application dated 11.6.1998 filed by one Madhwa Nand Sahay, retired Dy. Secretary, Bihar Vidhan Sabha, Patna to the Officer Incharge, Gardanibagh, on which there is some endorsement of the same being S.D.E No.349 dated 11.6.1998 and submits that the Court below has committed jurisdictional error in not admitting the same as a secondary evidence. In the opinion of this Court whole dispute seems to be rather academic because if the Court below was satisfied that there is a report of the concerned police station with regard to avibility of original of the Sanha, reference whereof has been found in the station diary entry register, and in fact the same has not been lost, it was justified in not allowing the petitioner to adduce secondary evidence by way of proving the photocopy of the document. On the contrary if there was a clear report of the concerned police station that the available register was being sent, but the application dated 11.6.1998 pertaining to Sanha bearing No. S.D.E. No. 349 dated 11.6.1998 was not at all traceable and in fact had been lost, in that event the petitioner was definitely entitled to make a prayer for admitting such document into evidence by way of secondary evidence, in terms of 2 the provisions made in Section 65 and 66 of the Evidence Act. In absence of any specific finding in the impugned order to this effect this Court is not in a position to pass any clear order and as such the court below is directed to pass a fresh order after looking into the report received from the police station. It is however made clear that in case it has been reported to the court below that the document in question is no longer available and in fact its original has been lost in the police station, the prayer of the petitioner for adducing secondary evidence must be considered in accordance with law in keeping with the mandate of Section 65 and 66 of the Evidence Act. With the aforementioned observation this application is disposed of. ( Mihir Kumar Jha, J. ) Abhay Kumar