Gujarat High Court
Mustanshir Gulamhussain Makda vs State Of Gujarat on 2 September, 2023
NEUTRAL CITATION
R/SCR.A/1461/2020 ORDER DATED: 02/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 1461 of 2020
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MUSTANSHIR GULAMHUSSAIN MAKDA
Versus
STATE OF GUJARAT
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Appearance:
MR ANKUR Y OZA(2821) for the Applicant(s) No. 1
MR M. ASIF D DASADIYA(10521) for the Respondent(s) No. 2,3
MR CHINTAN DAVE, APP for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 4
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 02/09/2023
ORAL ORDER
1. The present petition is filed for the following prayers:
"5(a) call for record and proceedings of Criminal Case No.1691/2017 from the court of learned Principal Senior Civil Judge, Palitana and examine the same;
(b) quash and set aside the order dated 24.01.2020 passed below exhibit 67 in Criminal Case no.1691/2017 by the court of learned Principal Senior Civil Judge, Palitana and consequently allow the relief prayed for in application dated 16.09.2019 given by the prosecution at exhibit 67;
(c) stay further proceedings and trial of Criminal Case No.1691/2017 pending in the court of learned Principal Senior Civil Judge, Palitana pending hearing and final Page 1 of 8 Downloaded on : Sat Sep 16 15:49:09 IST 2023 NEUTRAL CITATION R/SCR.A/1461/2020 ORDER DATED: 02/09/2023 undefined disposal of this petition;
(d) Pass ad-interim or interim order ex-parte in terms of paragraph (c) above;
(e) xxxxx"
2. The brief facts leading to filing of this petition are as under:
2.1 The FIR being C.R.No.81 of 2013 was lodged in Palitana Town Police Station, District Bhavnagar against the respondent nos.2 to 4 by the petitioner under Sections 406, 420, 465, 467, 468 and 471 of the Indian Penal Code (`IPC' for short) alleging that the property described therein was owned by the petitioner jointly with his two brothers and a sister; that after the demise of the father of the petitioner, the respondent nos. 2 and 3, in connivance with the respondent no.4 have deleted the name of the petitioner from the record on the basis of an affidavit prepared in the name of the petitioner and containing fabricated the signature of the petitioner interalia declaring that the petitioner waived his right in the said property in favour of his mother; after deleting the name of the petitioner, the respondent no.2 thereafter transferred the said property to respondent no.3 and on the basis of that false affidavit/declaration of the petitioner, the respondent no.3 claimed exclusive ownership right in the said property.
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NEUTRAL CITATION R/SCR.A/1461/2020 ORDER DATED: 02/09/2023 undefined 2.2 It is further averred that pursuant to the said FIR, investigation was made and the original affidavit containing fabricated signature of the petitioner was seized and sent for FSL to compare the signature of the said affidavit with specimen signature of the petitioner; thereafter the chargesheet was filed and the charge was framed; thereafter the matter came to the stage of recording evidence. That, the matter was transferred in November, 2017 to the Court of Senior Civil Judge, Palitana where the case was registered as Criminal Case No.1681 of 2017; that an application was filed by APP in February, 2018 to call for original papers which came to be allowed and consequently a yadi was sent to the Palitana Police Station for calling the record; during the course of trial, through an application dated 4.12.2018 at Exh.43, the APP called for the FSL report and yadi thereof was sent on 12.2.2019 and the matter was posted for recording of evidence on 12.3.2019. 2.3 It is further averred that on 16.3.2019, in presence of the accused, seal cover of muddammal no.405 of 2019 dated 11.3.2019 was placed before the court and deposition of the first information i.e. the present petitioner was recorded vide Exh.52. That when the evidence of first informant was recorded on 16.3.2019, it was the first day of newly appointed APP and he was not conversant with the facts of Page 3 of 8 Downloaded on : Sat Sep 16 15:49:09 IST 2023 NEUTRAL CITATION R/SCR.A/1461/2020 ORDER DATED: 02/09/2023 undefined the case; that the APP tendered an application to exhibit the documents produced and referred during the examination of first informant, an application at Exh.54 dated 16.3.2019 submitted by the APP to call the person who is conversant with the FSL report as witness; the said application came to be rejected by the learned trial Court dated 16.3.2019 and the matter was thereafter posted for further statement under Section 313 of the Cr.P.C.
2.4 It is further averred that being aggrieved by the said order, the petitioner filed revision application against the said order, which was allowed vide order dated 28.5.2019 with an order that the learned trial Court shall examine the witness no.17-Rubabben at the first instance. Despite the same, the learned trial Court did not examine any witnesses in accordance with the order passed by the learned Sessions Court.
2.5 It is further averred that after the right of prosecution was reopened, the petitioner, through APP, made an application at exhibit 67 on 16.9.2019 that the documents that were proved during the course of examination of first informant be given exhibit numbers. The said application was rejected vide impugned order dated 24.1.2020. Thus, this petition is filed with the prayers mentioned hereinabove. Page 4 of 8 Downloaded on : Sat Sep 16 15:49:09 IST 2023
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3. Heard learned advocate Mr.Oza for the petitioner, learned APP Mr.Dave for respondent-state and learned advocate Mr.Dasadiya for the respondent no.2. 3.1 Learned advocate Mr.Oza has submitted that the trial Court has committed error in not considering the fact that the application which is given vide Exh.67 is given after the trial court below has failed to give necessary exhibit numbers to mark nos.N-1 to N-14 and D-5 to D-9 and mark S-1 to S-690, which are the original documents and also referred in Exh.52 deposition on behalf of the accused persons during the cross examination. Therefore, such documents are required to be exhibited. The trial Court has committed error in not considering this aspect and rejecting the application by passing cryptic order and by giving sole reason that such application is filed after delay of six months as the deposition at Exh.52 all the witnesses is concluded on 16.3.2019 and the application below Exh.67 is given on 16.9.2019 and cross-examination and chief examination of the witness is also over.
3.2 Learned advocate Mr.Oza has, therefore, submitted that this is not a good ground for rejecting the application considering the provisions of the Indian Evidence Act and Page 5 of 8 Downloaded on : Sat Sep 16 15:49:09 IST 2023 NEUTRAL CITATION R/SCR.A/1461/2020 ORDER DATED: 02/09/2023 undefined considering the principle of fair trial and the learned trial Court has committed error in eye of law. He has further submitted that if such request which is otherwise required to be acceded to or to be made by the public prosecutor as the witness examined is the person who is conversant with the FSL report and therefore also such order passed by the learned trial Court is erroneous, improper and therefore he prays to allow this petition.
4. Per contra, learned advocate Mr.Dasadiya for the respondent no.2-complainant has submitted that the trial Court has not committed any error in passing such order, more particularly, when the documents which are considered as relevant by the learned trial Court are given the exhibit numbers during the examination of the said witnesses and thereafter, after period of delay of six months, such application is filed which is not required to be considered as the documents which are sought to be exhibited are not relevant for consideration for the case of the prosecution and therefore he has submitted that the order passed by the learned trial Court can be considered as interlocutory order and therefore this Court should not exercise the powers at this stage.
4.1 Learned APP Mr.Dave has fairly submitted that Page 6 of 8 Downloaded on : Sat Sep 16 15:49:09 IST 2023 NEUTRAL CITATION R/SCR.A/1461/2020 ORDER DATED: 02/09/2023 undefined the learned advocate for the complainant has pointed out to the learned trial Court that all these documents were also referred by the accused persons during the cross examination of the witnesses at Exh.52. Even thereafter the learned trial Court has passed such cryptic order therefore he has submitted that this Court may pass appropriate order in the interest of justice.
5. I have considered the rival submissions and also considered the fact that the application which is filed at Exh.67 is a detailed application. Not only that, the written arguments which are filed by the complainant in support that his application at Exh.67 are very precise by giving proper details. From the examination-in-chief as well as cross- examination at Exh.52 which is on record, it transpires that the accused person has also referred to these documents which are now sought to be exhibited Moreover, such documents pertain to the report of FSL and related documents on the basis of which the FSL report is prepared.
6. In view of the above and considering the various judgments of the Hon'ble Apex Court and considering the concept of fair trial, I am of the opinion that the learned trial Court has committed error by rejecting such application by giving only one reason that the same is filed after delay Page 7 of 8 Downloaded on : Sat Sep 16 15:49:09 IST 2023 NEUTRAL CITATION R/SCR.A/1461/2020 ORDER DATED: 02/09/2023 undefined of six months without giving cogent or further reasons, which is not just and proper. The said application can be considered at any point of time before commencement of final arguments. There is, in fact, a lapse on the part of the Presiding Officer as well as the concerned APP who should point out that exhibiting of such documents are missing. As the complainant has rightly pointed out such lacunae, the Court is bound to accept such lapses and correct it by allowing the application with a view to do complete and proper justice to the parties in trial, as such documents which are otherwise also in form of original documents are required to be exhibited unless or otherwise challenged by the contesting party at the relevant point of time which is not the case in the present matter. Therefore, in my opinion, the learned trial Court has committed gross error of law
7. In view of the above, this petition is allowed. The impugned order dated 24.01.2020 passed below exhibit 67 in Criminal Case no.1691/2017 by the court of learned Principal Senior Civil Judge, Palitana is quashed and set aside. The relief prayed for in application dated 16.09.2019 given by the prosecution at exhibit 67 before the learned trial Court is allowed and the learned trial Court shall do the needful to give necessary exhibits.
(SANDEEP N. BHATT,J) SRILATHA Page 8 of 8 Downloaded on : Sat Sep 16 15:49:09 IST 2023