BERI, J. - (1.) THE learned Sessions Judge, Udaipur, by his order dated the 24th July, 1963, has recommended that the order of the Munsiff-Magistrate, Chhoti Sadri, dated the 28th June, 1963, whereby he disallowed the production of the certified copies of certain telegrams by the prosecution be set aside under sec. 439 of the Code of Criminal Procedure.
(2.) THE facts which it is necessary to recount for the purposes of this reference, briefiy, are these. Considerable quantity of gold was recovered by the Central excise Department from the house of one Chhaganlal at Chhoti Sadri. Certain excavations were done by the department for the recovery of that gold and w hen Chhaganlal's son Gunwant Lal proceeded to repair the damage caused by the excavation, he found another 51 slabs of gold. He entrusted these 51 slabs to Ganpatlal, Hiralal and two others presumably for safety from the Excise Depart-ment. In October, 1965, the Government of India relaxed certain provisions of the Gold Control Order and Gunwantlal therefore demanded the return of the gold slabs from Ganpatlal and others. Hiralal returned seven slabs but the remainder were not returned. Gunwantlal consequently lodged a report at the police station Chhoti Sadri on the 9th December, 1965. On the evening of the 11th December, 1965, an announcement was made by the Jaipur Station of All India Radio that Ganpatlal had offered to donate gold equal to the weight of the then Prime Minis-ter of India late Shri Lal Bahadur Shastri for the purposes of defence of the country. This news alarmed Gunwantlal and he sent telegrams to the various authorities inccluding the Prime Minister of India, the Home Minister of India, the Finance Minis-ter of India, the Chief Minister, the Home Minister of Rajasthan etc. to the effect that the gold which Ganpatlal was offering by way of donation was his and the subject-matter of a criminal case. THE challan in the case was put up by the Police on the 10th September, 1966, and the Magistrate has so far recorded the state-ments of 53 witnesses out of 79. On the 3-6-1968, before the statement of Gunwant Lal P. W. 54 came to be recorded, an application was moved on behalf of the prosecution confessing that on account of oversight they had neglected to produce the certified copies of the telegrams which Gunwantlal had sent on hearing the news from the All India Radio. When Gunwantlal (P. W. 54) was in the witness-box, the prosecution pressed for the disposal of the application dated the 3rd June and the learned Magistrate by his order of the 28-6-1958 rejected it. THE reason which persuaded the learned Magistrate to disallow the application were that the produc-tion of these telegrams was belated and further that the destruction of the original telegrams having not been proved, the secondary evidence could not be received. The prosecution moved an application by way of a revision before the learned Sessions Judge, Udaipur, who by his order mentioned above has recommen-ded that the order of the Magistrate of the 28th June, 1968, be quashed and the prosecution be allowed to produce the certified copies of the telegrams. In his explanation under rule 80 of the General Rules (Criminal) the learned Magistrate has added another reason for the rejection of the prosecution's application namely that its acceptance would have prolonged the proceedings. While Mr. R. N. Munshi, the learned Additional Government Advocate supports the reference Mr. Shishodia opposes it. Mr. Shishodia's submission is that the reference should not be accepted because it was discretionary for the learned Magistrate to have permitted or refused the production of the certified copies at the late stage of the proceedings and the discretion having been once exercised for good reasons by the learned Magistrate, did not call for any interference by me in the revisional jurisdiction. In fairness to the argument of Mr. Shishodia, I must record that the prosecution has been acting leisurely when it thought of these telegrams after having examined 45 witnesses for the prosecution. However State vs. Raghunath (l) has settled the controversy that under sec. 251 A (7) of the Code of Criminal Procedure it is open to the prosecution to produce documentary evidence. That being the position, the questions which survives for consideration are (1) whether I should interfere with the exercise of the discretion by the learned Magistrate against the prosecution on account of its belated action and (2) whether there are legal grounds for the reception of the secondary evidence. Generally a discretion under the Code of Criminal Procedure has to be judicially exercised. If it is not exercised judicially, then it is open to interference by a revisional court. Under sec. 435 or 439 of the Code of Criminal Procedure the 'correctness', 'legality' or 'propriety' of any finding, sentence or order is open to scrutiny. In my opinion, the ambit of 'propriety' is wide enough to include the correction of the exercise of a discretion such as the one before me even if the amplitude of the word 'correctness' is not considered for the moment. In my opinion, the exercise of discretion is open to examination by a revisional court. The second argument is that no ground was prepared for the reception of secondary evidence. The relevant portion of sec. 65 of the Evidence Act reads as follows: - 65. Secondary evidence may be given of the existence/condition or con-tents of a document in the following cases (a ). . . (b ). . . (c) When the original has been destroyed or lost, or when the party offer-ing evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time. . . . . . . . . . . . . . . . In case (a) (C) and (d), any secondary evidence of the contents of the document is admissible. Under the Indian Telegraph Rules, 1951, issued by the Government of India in the Ministry of Communication, Posts and Telegraphs Department, under Notification No. T-190/50 dated at New Delhi, the 6th October, 1951, rules 164 and 166 read as under "164. Period of Preservation - The originals of inland telegrams and all documents relating to them shall be kept for one month only in Government telegraph offices, and shall then be sent to the Telegraph Check Office, Calcutta where they shall be preserved for three months from the beginning of the month following that in which the telegram was handed in, and in the absence of any application under rule 169 shall then be destroyed; Provided that inland telegrams from offices specified by the Director-General in that behalf shall be so preserved for four months. "166. Copies. The sender or the addresses of an inland telegram, or the authorised representative of either may, on application to the telegraph office within one month, or to the officer-in-charge of the Telegraph Check Office, Clacutta, within the period fixed for preservation of records (Rule 164) be furnished with certified copies or photographs - (a) of the telegrap originally handed in for transmission or (b) of the copy delivered, if a duplicate of it has been retained. " The telegram in question is dated the 12th December, 1965. In view of the Rule 164, a presumption is available that within three months of that date the telegram would have been destroyed in the ordinary course. By operation of this rule, it is, therefore, reasonable to presume that the original is not available and the ground for the reception of the secondary evidence therefore stems from the rule itself. It appears that the rule was not brought to the notice of the learned Magistrate and it is on that account that he appears to have said that no ground for the reception of the secondary evidence was laid. While I appreciate the anxiety of the learned Magistrate to impart speed to the proceedings, but the production of three telegrams would not have protracted the proceedings is any appreciable measure and therefore that was no good reason for refusing the reception of the certified copies of the telagram. In view of the rules quoted by me above, certified copies of the telegram are admissible in evide-nce. I, therefore, accept the recommendation made by the learned Sessions Judge, set aside the order of the learned Magistrate dated the 28th June, 1968, and direct him to take into evidence the certified copies of the telegrams or the original messages as delivered to the addressees. The prosecution would see that there is on further loss of time. The reference is accepted. Learned counsel for the accused prays that time may be fixed by which this must be done. The request is reasonable. The prosecution is directed to produce the telegrams within one month from today if they have not already done so. .;