Sardar Iqbal Singh vs State of Uttarakhand and Another

Prafulla C. Pant, J.—Heard Sri Sandeep Tandon, learned Counsel for the Applicant and Sri Sachin Chopra for Respondent No. 2.

By means of this fresh petition, the Petitioner has sought quashing of the impugned order dated 13-2-2007 (Annexure No. 13 to the petition) passed by learned Sessions Judge, Dehradun in Criminal Revision No. 15 of 2007, whereby the order dated 7-12-2006 (Annexure No. 12 to the petition) passed by Special Judicial Magistrate 1st, Dehradun, in Complaint Case No. 1615 of 2004, Sardar Iqbal Singh v. Anil Sharma, was affirmed.

Brief facts of the case are that the complainant (present Petitioner) filed Criminal Complaint No. 1615 of 2004 against the Respondent No. 2 Anil Sharma, alleging that the accused has committed offence punishable u/s 138 of Negotiable Instrument Act, 1881. It appears that the accused (Anil Sharma) summoned in said case and the trial progressed. Annexure 4, Annexure 5 and Annexure 6 shows that on behalf of the complainant P.VV.1, Sardar Iqbal Singh, P.W.2 Smt. Seema Sachdeva and P.W.3 Arun Kumar were got examined as witnesses. After complainant closed the evidence, the same appears to have been put to the accused u/s 313 of Code of Criminal Procedure Thereafter on behalf of the defence D.W.1 Anil Kumar Sharma (accused) got himself examined and also produced D.VV.2 Dr. V.K. Mehta, D.W. 3 Rajesh Kumar and D.W.4 Ajay Mohan Paliwai, handwriting and finger prints expert, as witnesses. After the close of the defence evidence, the complainant moved an application, dated 5-12-2006, u/s 311 of Code of Criminal Procedure for permitting him to produce a finger print and handwriting expert of his choice. The said application was rejected by the trial court vide its order dated 7-12-2006. Aggrieved by said order complainant preferred the Criminal Revision No. 15 of 2007 before the learned Sessions Judge. The same was also dismissed by said Court vide order dated 13-2-2007. Hence, this petition.

On behalf of the Respondent No. 2, an objection is raised as to the maintainability of this petition u/s 482 of Code of Criminal Procedure Attention of this Court is drawn on behalf of Respondent No. 2, to the principle of law laid down by the Apex Court in Rajan Kumar Manchanda v. State of Karnataka JT1987 (4) SC 837 and also to the one laid down in Krishnan and another Vs. Krishnaveni and another, . Hon''ble the Supreme Court in said cases have held that the powers u/s 482 of Code of Criminal Procedure cannot be exercised to circumvent the bar contained in Sub-section (3) of Section 397 of the Code. From the papers on record, it is evident that after the complainant''s application was dismissed by the trial court, he preferred the revision before the Sessions Judge and that too has been dismissed. Undoubtedly second revision is not maintainable by the same party. As such, moving an application u/s 482 of Code of Criminal Procedure against Revisional Court''s order, amounts to review the orders passed by the courts below i.e. indirectly exercising the powers as second Revisional Court at the instance of the same party. This Court is in agreement with the learned Counsel for the Respondent No. 2 that the law does not permit this Court to entertain a petition u/s 482 of Code of Criminal Procedure to circumvent the provisions of Sub-section (3) of Section 397 of Cr.P.C, except in cases of grave miscarriage of justice.

Assuming for a moment that this Court can entertain a petition u/s 482 of Code of Criminal Procedure in the matter, still, there is yet another hurdle on the way of the Petitioner. The Petitioner wanted the trial court to exercise its powers u/s 311 of Code of Criminal Procedure to summon a fingerprint and handwriting expert. It is settled principle of law that the powers u/s 311 of Code of Criminal Procedure cannot be exercised only to fill the lacuna in the prosecution evidence. A copy of the statement of P.W. 1 Sardar Iqbal Singh shows that in the cross-examination, there was a suggestion from the defence that in the disputed cheque (Ext.A-2), complainant has got interpolation done by mentioning ''2004'' in place of ''2001''. As such, the complainant was aware of the case of the defence and he opted not to adduce evidence of any finger print and hand writing expert from the side of the complainant. It is only after the defence evidence is closed and the case was listed for arguments when the Petitioner woke up and moved the application. In the opinion of this Court, in the circumstances, the attempt on the part of the complainant was only to fill the lacuna in the prosecution evidence. Learned Counsel for the Petitioner drew attention of this Court to the case of U.T. of Dadra and Haveli and Another Vs. Fatehsinh Mohansinh Chauhan, . The facts of the said case were different and in that case the application of the prosecution was allowed to examine the witness, a collector, with regard, to whom the accused had taken the plea that he had a meeting (with Collector) at the time of the incident and the accused got examined two witnesses to support their plea of alibi. The Collector was the most important person, who could have stated whether he met those persons at that relevant point of time or not. In such circumstances, the Apex Court held that it was not a case of filling of lacuna from the side of the prosecution. However, the facts of this case are different. As such, the referred case law is of no help to the complainant.

For the reasons, as discussed above, the petition u/s 482 of Code of Criminal Procedure is dismissed.