Bombay High Court
Ramesh Fulchand Baheti vs Sandesh Kamalkishorji Randad And ... on 6 June, 2017
Bench: P.N. Deshmukh
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL WRIT PETITION NO. 917 of 2016.
PETITIONER: Ramesh Fulchand Baheti,
aged about 67 years, Occu:
Business, R/o C/o Baheti Brothers,
Tilak Road, Akola, Tq. and Distt.
Akola.
: VERSUS :
RESPONDENTS: 1. Sandesh Kamalkishorji Randad,
aged about 45 years, Occu: Business,
R/o Kama Plots, Akola, Tq. and Distt.
Akola.
2. M/s Baheti Automobiles,
A registered Partnership Firm.
3. Kamalkishore s/o Fulchand Baheti,
aged about 70 years, Occu: Business.
4. Sandeep Kamalkishore Baheti,
aged about 48 years, Occu: Business.
All 2 to 4 are resident of infront of
Shivaji Park, Akola, Tq. and Distt.Akola.
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Mr.P.K.Mohta, Advocate for the petitioner.
Mr.S.S.Sarda, Advocate for respondent no.1.
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CORAM: P.N.DESHMUKH, J.
DATED : 6th JUNE, 2017.
ORAL JUDGMENT :
1. Rule. Rule is made returnable forthwith. Heard
finally by consent of learned counsel of both the parties.
2. Challenge in this petition is to impugned order dated
14th November, 2016 passed by learned 7th Judicial Magistrate
(First Class), Akola in Summary Criminal Case No.788 of 2011,
whereby application filed under Section 91 of the Code of
Criminal Procedure by complainant in the proceedings initiated
against petitioner under Section 138 of the Negotiable
Instruments Act, 1881 came to be allowed, thereby directing
petitioner to place on record some document.
3. Heard learned counsel for petitioner/ori.accused and
learned counsel for respondent no.1/complainant.
4. It is submitted that petitioner being original accused
no.3 in above stated proceedings under Section 91 of the Code of
Criminal Procedure cannot be directed to place on record
document, as no such direction can be issued to accused under
the provisions of Section 91 of the Code of Criminal Procedure.
Learned counsel for petitioner in support of his case
has placed reliance in the case of State of Gujarat ..vs.. Shyamlal
Mohanlal Choksi and State of Gujarat ..vs.. Munabhai Motilal
Patel reported in AIR 1965 SC 1251 and has, therefore, prayed
that petition be allowed and impugned order be quashed and set
aside.
5. Learned counsel for the respondent, on the other
hand, has supported impugned order and has submitted that no
prejudice would be caused to petitioner if he is directed to
produce Partnership Deed on record as directed by the impugned
order, as learned trial Court while issuing such directions under
the impugned order has found that there is nothing incriminating
in nature against the petitioner in the document sought to be
produced on record and therefore contended that petition be
dismissed.
6. Considering the facts as aforesaid, controversy
involved in the present petition is, if under Section 91 of the Code
of Criminal Procedure accused can be directed to place on record
documents.
7. In the case of State of Gujarat ..vs.. Shyamlal Mohanlal
Choksi, cited supra, the Hon'ble Apex Court was required to
consider the scope of Section 94 of Criminal Procedure Code
which section is in para materia with Section 91 of the Code of
Criminal Procedure of 1973 and while considering the scope of
said Section in para no.33 of its judgment has interpreted thus :
"Keeping the above considerations in mind, let
us look at the terms of the Section. It will be
noticed that the language in general, and prima
facie apt to include an accused persons. But
there are indications that the Legislature did not
intend to include an accused person. The words
'attend and produce' are rather inept to cover
the case of an accused persons. It would be an
odd procedure for a Court to issue a summons
to an accused person present in Court 'to attend
and produce' a document. It would be still more
odd for a police officer to issue a written order
to an accused person in his custody to attend
and produce a document."
8. In view of law laid down as aforesaid, thus there
remains no doubt that any directions can be issued to accused to
produce documents on record. Moreover, though learned
counsel for respondent/original complainant by referring to the
impugned order has submitted that the learned trial Court while
passing such order has already considered that there is nothing
incriminating against the petitioner and as such, has ordered
petitioner to produce Partnership Deed on record, it is material to
note that such observations of learned trial Court can be on
record only on said Court reading contents of Partnership Deed.
As such, it is prima facie found that the learned trial Court had
gone through the contents of some document which is not on
record in original. In that view of the matter, impugned order
cannot be sustained on this count also.
9. Having considered facts involved in the present
petition as aforesaid, same is liable to be allowed. In the
circumstances, Rule is made absolute, however, there shall be no
order as to costs.
Needles to say that as complaint is of the year 2011,
learned Trial Court shall make an endeavour to dispose of the
same as expeditiously as possible and in any case within a period
of six months from today.
JUDGE.
chute
