Missing Court Records Stall SIES Cheating Case Trial; Law Allows Reconstruction With Safeguards

Missing of original records is not new for Indian courts, but the law makers had foresighted the situation and given a provision of reconstruction of records, only in cases where it is not due to negligence of the agency.

FIR Copy Missing Since 2022

Recently, it has come to light that the trial in the Rs58 crore cheating case of the South Indian Education Society (SIES) trust in 2014 has been stalled since June 2022 because the original copy of the FIR is untraceable. The court is now waiting for the prosecution to make its submission and clarify its stand on the missing records.

Missing records, however, is not the dead end for the prosecution agencies as the law makers have made provisions for reconstruction of records by way of relying on the true copies of the original records.

Legal Provision for Lost Records

The special public prosecutor and now a member of Rajya Sabha, Ujwal Nikam, said, “Reconstruction of documents is possible in cases where there is no dispute over its authenticity. The copies can be taken on record after the consent of the opposite party.” However, Nikam added that if there is a dispute over the genuineness of the documents, the court has to take a call.

Caution From Abad Ponda

Designated senior counsel Abad Ponda said, “The copies of the original records can be taken on record provided, the prosecution shows that the due diligence was taken to preserve it and also retrieve it after they were lost.”

Precedent in NDPS Case

Last week, the special NDPS court allowed the prosecution to use true copies of the original records in a 20-year-old case, observing that the record was destroyed due to fire, and not due to any fault of the prosecuting agency.

It is to be noted that merely bringing the copies of the original records would not solve the problem of the prosecution at the trial stage. They have to also prove the contents of the missing documents.

Similar situation arose in the 2008 Malegaon blast where original statements of witnesses which were recorded before a magistrate were lost from the court records. The prosecution was allowed to rely on the copies of the statements.

Trial Court’s View

The accused, however, challenged it in Bombay High Court.

The HC had stayed the order observing, “The copies produced were not compared with original and there is nothing on record to show that those were prepared from originals.”

Even after this, the prosecution took no further steps and examined those witnesses, on the basis of their statements given to the investigating officer.

Judicial Emphasis on Safeguards

However, at the end of the trial, special judge AK Lahoti refused to accept the contents of the missing statements observing that the prosecution merely asked the witnesses if they had given any statement before the magistrate court without actually asking them to confirm the contents.

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The court said, “Even witnesses answered in affirmative, though it would not tantamount to confirmation of contents of those statements, unless and until, those are produced on record, copies are supplied, opportunity to raise objection is given to accused and admission of contents by the witnesses after confronting to them.”

The court said the witnesses were not confronted nor did the prosecution examine the magistrates who had recorded the statement. Hence the court refused to rely on those statements.