Calcutta High Court
Pradip Kr. Sengupta vs State Of West Bengal on 30 July, 2002
Equivalent citations: 2003CRILJ2345
ORDER Malay Kumar Basu, J.
1. In this order it is to be considered whether the revisional application filed by the applicant, Sri Pradip Kumar Sengupta, who is the accused in G.R. 347 of 1995 of the Court of the learned S.D.J.M., Durgapur should be admitted.
2. The relevant facts leading to the filing of this Revisional application may be summarised as follows. The abovementioned Criminal Case in question (G.R. 347/95) arising out of Coke Oven P.S. Case No. 31 dated 17-4-1995 was filed against the present petitioner by one Sri Indrajit Sengupta, the de facto complainant, who was the Director of Titan Engineering Co. Pvt. Ltd., in which the petitioner was also another Director at the relevant point of time. The complaint was lodged on 17-4-1995 against the petitioner on the ground that he had submitted false particulars about his qualification, etc. and obtained the employment under the said company by practice of fraud.
3. On the basis of this FIR, police started investigation and after the investigation was complete, it submitted a charge-sheet under Section 420/409 of the I.P.C. before the Court of the learned S.D.J.M.. Durgapore. On the basis of the materials on record and after hearing the arguments of both sides, the learned trial Magistrate framed charge against the accused petitioner under Section 420 of the I.P.C. Here it should be mentioned that before the charge was framed, the accused petitioner filed a petition before this Court praying for quashment of the proceeding in question and a single Bench of this Court allowed his prayer and quashed the criminal proceeding and against the order the de facto-complainant preferred an S.D.P. before the Hon'ble Supreme Court and after hearing of the same, the Apex Court came to the finding that from the materials on record a prima facie case under Section 420 of the I.P.C. had been established, although no case under Section 409 of the I.P.C. was made out and in that view of the matter the Apex Court sent the matter back to the learned trial Court for trial so far as it related to the offence under Section 420 of the I.P.C. After that, the Court of the learned trial Magistrate framed the above--mentioned charge in presence of the accused petitioner and after hearing his learned Advocate. Thereafter, the learned Court below commenced the trial of the case and during the examination of the PWs it admitted into evidence a Bio-data which was filed by the prosecution and the Court marked it as an exhibit. However, before the same was admitted into evidence, the accused petitioner filed a petition before the learned trial Court for an order referring the said document, namely, the impugned Bio-data, allegedly filed by the accused petitioner to a Hand writing expert for examination and report on the ground that it was a forged one and was not in his own handwriting or signature. But the learned Magistrate rejected this petition and went on with the trial and in course of that it admitted the said document, namely, that Bio-data, into evidence making it as an exhibit, for the prosecution.
4. Being aggrieved by this order of the learned Magistrate rejecting his prayer for referring the document to Hand writing Expert for examination the accused-petitioner has preferred the present revisional application challenging the order as erroneous and illegal and liable to be set aside.
5. Mr. Ghosh, learned Advocate appearing on behalf of the de facto-complainant, has entered his appearance during hearing on this matter and has opposed the admission of this revisional application on the ground that under the law there is no scope for the accused petitioner to make any such prayer before the Court the Court when the prosecution evidence was being adduced. According to him, under the Law of Evidence the accused has no burden to discharge and whether any particular document being relied upon by the prosecution is genuine or not, or, whether in the face of such a document the prosecution case will succeed or fall through is totally a headache of the prosecution and if the prosecution fails to get it free from any infirmity or defect, then that will be to the detriment of the prosecution itself and the accused has nothing to take any part in the process.
6-7. On the other hand, Mr. Sengupta, learned Advocate appearing on behalf of the petitioner, contends that the accused having been at the receiving end and being the person who will suffer prejudice, if such a prayer is acceded to, he has every right to file such a petition and pray for such a privilege being granted to him.
8. The trial of a criminal case has to be conducted according to the procedural norms that have been provided for by the Criminal Procedure Code and the Evidence Act and the trial Court has to observe these procedure strictly while holding the trial of a criminal case. According to the Criminal Procedure Code the trial of a police case like the present one is to be held under the provisions as enshrined under Chapter XIX (Sections 238 to 243). According to these provisions, after a charge is framed against the accused, the Court is to fix a date for evidence of the prosecution and to observe the procedures meant for summoning the witnesses, etc. After such evidence is taken in full the witnesses having been cross-examined by the defence, the Magistrate will take the next step, namely, examination of the accused persons under Section 313 of the Cr.P.C. After such examination of the accused persons by the Court is over, the Court will then call upon the accused persons to enter their defence and adduce evidence (vide Section 243, Cr.P.C.). So the Code has made particular provisions enabling the defence to offer its evidence in a positive manner, if it so likes apart from the fact that it will be in a position to challenge any evidence adduced by the prosecution either oral or documentary while cross-examining any particular witness and also while being examined under Section 313, Cr.P.C. the accused will have his say regarding any such evidence adduced by the prosecution. The defence will be at liberty to examine any witness or produce any document in support of its case before the Court at that stage in accordance with that Section. The present petition filed by the accused before the trial Court is for all practical purposes aimed at seeking the Court's leave to adduce certain evidence in support of its case. If the defence wants to do that in exercise of any right which the lave has conferred on it, then it can go up to the extent to which it may be permissible under the law to go and that too, at the appropriate stage and in consonance with the provisions of the Code. When the prosecution evidence is being taken by the Court, certainly the defence cannot make any prayer for being given any opportunity to adduce its evidence. When the stage for adducing defence evidence comes, if any such petition is filed before the trial Court, such Court will have the duty to deal with and dispose of such petition in accordance with the law.
9. Therefore, the petition in question appears to have been rightly rejected by the learned Court below and I find no reason to treat this order as revisable being in the nature of interlocutory order.
10. It may be mentioned that Mr. Sengupta has expressed his shock at the way the order dated 18-3-2002 in question has been passed by the learned Magistrate concerned and he has levelled criticism against the same on the ground that it is an unreasoned order and the words which have been used by the Presiding Officer in this order carries no meaning, This, according to Mr. Sengupta, the sentence written in this order No. 29 dated 18-3-2002, Later. "As per law, the hearing, if resumed under Section 79, Cr.P.C., no case can be framed ............" Carries absolutely no sense or meaning and significantly enough, also the provisions of Section 79, Cr.P.C. have no manner of application in the facts and circumstances of the present case.
11. It is true that the above expression appears to be without any meaning and the quoting of Section 79, Cr.P.C. appears to be erroneous. But simply on the basis of the contents of a certified copy and without consulting the original order it will not be proper to make an assessment about the knowledge of the judicial officer concerned in law or in English.
12. Be that as it may, this solitary mistake cannot be taken to have any bearing upon the question as to the correctness of the order of the Court below rejecting the prayer of the defence to refer the said document to a Handwriting Expert, the failure of the Presiding Officer concerned to note down the reasons in sufficient details cannot prompt this Court to come to finding that the order is reversible or revisable on that score alone.
13. In fine, the order impugned being not a final order is not revisable at all and the Revisional application being not sustained is summarily rejected.
14. Let urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for both parties within seven days from the date of putting in the requisites.