Mustanshir Gulamhussain Makda vs State Of Gujarat
2023 Latest Caselaw 6409 Guj

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     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

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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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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

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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.

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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

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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

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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

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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