Bombay High Court
John Dsouza vs The State Of Maharashtra on 19 December, 2023
Author: Sarang V. Kotwal
Bench: Sarang V. Kotwal
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO. 1457 OF 2023
John D'Souza ..Applicant
Versus
The State of Maharashtra ..Respondent
__________
Mr. Ashok K. Wanwari for Applicant.
Mr. Arfan Sait, APP for State/Respondent.
__________
CORAM : SARANG V. KOTWAL, J.
DATE : 19 DECEMBER 2023
PC :
1. The applicant has challenged the order dated
02.11.2019 passed by the Metropolitan Magistrate, 62 nd Court,
Dadar, Mumbai, in C.C.No.6201035/PW/2014; whereby the
applicant's application for discharge was partly allowed. The
applicant challenged that order in Criminal Revision Application
No.1357 of 2019 before the Additional Sessions Judge, Greater
Mumbai. The revisional Court, vide the order dated 31.10.2023
partly allowed that revision application. Being aggrieved by not
granting the complete relief, the applicant has approached this
Court challenging these two orders for his complete discharge
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from the case. The charge-sheet was filed against the applicant
under sections 465, 467, 468, 471 and 420 of the I.P.C. and
U/s.12(1)(B) of the Passports Act, 1967. The learned Magistrate
discharged the applicant from the charges of commission of
offence punishable U/s.465 of the I.P.C. only. The other charges
were retained. The revisional Court, on the other hand, discharged
the applicant from the charges U/s.467, 468 and 471 of the I.P.C.,
as well as, from the charges U/s.12(1)(B) of the Passports Act,
1967. The learned Additional Sessions Judge directed the learned
Magistrate to proceed against the applicant for commission of
offence punishable U/s.420 of the I.P.C.
2. Heard Shri. Ashok Wanwari, learned counsel for the
Applicant and Ms. Sangita Shinde, learned APP for the
State/Respondent.
3. The prosecution case against the applicant and others is
as follows:
The F.I.R. was lodged by the Assistant Passport Officer
Shri. Rokade. The F.I.R. was lodged on 29.03.2010 at Worli police
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station vide C.R.No.89 of 2010. It was his case in the F.I.R. that,
while verifying the documents while issuing the Passports, the
authorities came across with the information that some applicants
had used forged documents for obtaining or for trying to obtain
the passports. The F.I.R. was against 14 such people. There is no
connection between the 14 people mentioned in the F.I.R. The
allegations against the present applicant are that, he had
submitted the birth certificate issued by the Additional Health
Officer, Corporation of Chennai. That Birth certificate was not
genuine. The investigation was carried out and the charge-sheet
was filed.
4. Learned counsel for the applicant submitted that, since
there was no connection between all these accused, an application
was made on behalf of the applicant for separating his trial.
Consequently, his trial was separated and the subject matter of the
present applicant is the trial against the present applicant alone.
5. Learned counsel for the applicant submitted that, in the
entire charge-sheet there is no document which can be described
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as a copy of the forged document. The disputed document of birth
certificate mentioned in the F.I.R. does not form part of the charge-
sheet. There is nothing to show as to how and when the applicant
had used any forged document. The charge-sheet contains only a
panchanama under which the applicant's specimen signatures
were taken. However, that panchanama leads to nowhere as there
is no connecting piece of evidence with any document. Learned
counsel submitted that, once the applicant is discharged from the
charges U/s.471 of the I.P.C. then the charge simplisitor U/s.420 of
the I.P.C. will not stand because basis of the allegations are that of
use of that forged document for cheating. In the present case, the
revisional court has discharged the applicant from the charges
U/s.471 of the I.P.C. and, therefore, once it is held that he had not
used any forged document, there is no question of the applicant
committing offence of cheating. In support of his contention, the
leaned counsel relied on the judgment of the Hon'ble Supreme
Court in the case of Hira Lal Panna Lal Mahi Versus State of
Gujarat1.
1 1969 (3) Supreme Court Cases 756
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6. Considering all these submissions, it is necessary to seek
response from the learned APP. Learned APP is seeking time.
Therefore, today I am adjourning the matter. Learned counsel for
the applicant has made out a case for grant of ad-interim relief.
7. Hence, the following order:
ORDER
i) Issue Notice to the Respondent/State of
Maharashtra.
ii) Learned APP waives service of notice.
iii) Stand over to 27.02.2024.
iv) Till then, there shall be ad-interim relief in terms
of prayer clause (d).
(SARANG V. KOTWAL, J.)
