State vs Bismark C.D ''Souza

N.A. Britto, J.—Heard. The petitioner-State prosecuted the respondent-accused under Sections 448, 427 r/w 34 IPC. In the course of the trial, the first informant, at whose behest the case was filed, produced a letter dated 12/06/2002 in support of his case that he was in possession of the premises, the same having been handed over to him by the respondent-accused. It appears that the respondent contested the signatures on the said letter and contended that that letter was not issued by him. One does not know why the State in the course of the investigations of the said case, did not seize the said letter from the said informant and send it for opinion of the handwriting expert. Be that as it may, the State then filed an application before the trial Court requesting the Court to obtain the handwriting of the accused no.1, who is purported to have signed the said letter. The said application came to be rejected by the learned trial Court. The State proceeded in revision to the Court of Sessions and the learned Additional Sessions Judge, by order dated 25/01/2007, directed that the specimen signatures of the said accused could be taken and these were in fact taken before the learned trial Court in the presence of the advocates on 19/10/2007. That order has attained finality as none has challenged the same. But no further steps appear to have been taken to forward the said signatures of the accused to the handwriting expert. However, the State on or about 24/10/2007 filed another application stating that the said first informant was willing to produce the documents containing the admitted signatures of accused no.1 which were produced in RCS No. 57/04/D to be sent along with the signatures obtained of the accused for expert opinion. This application dated 24/10/2007 was objected to by the accused and it was contended on behalf of the accused that the State ought not to be allowed to go beyond the order of the revisional Court. However, the learned Magistrate by order dated 4/01/2008 came to the conclusion that even in case the document was not relied upon, the accused no.1 would get every opportunity to give his say and to produce rebuttal evidence, against all the documents which were to be sent to the handwriting expert, while recording evidence on merits and, therefore, no prejudice would be caused to the accused, if any of the documents which the prosecution stated are having the admitted signatures of the accused were sent for the handwriting expert for a fair decision in the case. The accused challenged the said order before the learned Sessions Judge, who by the impugned order dated 20/08/2008 set aside the order of the learned JMFC observing as follows;

Now, coming to the subsequent application dated 24/10/2007 (Exhibit 21/D), the prosecution had not produced any allegedly admitted documents which were produced in R.C.S. No.57/04/D, containing signatures of the accused no.1, before the learned J.M.F.C., alongwith the said application. Thus, without perusal of the said documents, the question is how could the learned J.M.F.C. satisfied herself that the said documents allegedly produced in R.C.S. No. 57/04/D and to be produced in future by the prosecution are those which have been written or signed by the accused no.1. By observing that the only point to be decided in this application is whether to send the admitted signatures of the accused no.1 to the Handwriting Expert or not, the learned J.M.F.C. has first of all taken for granted that the said documents which are not on record in the case before her contain admitted signatures of the accused no.1. The above is not only arbitrary and capricious but also perverse.

Shri Ferreira, the learned Public Prosecutor firstly submits that the order of the JMFC was an interlocutory order and, therefore, ought not have been interfered with in revision. Learned Public Prosecutor further submits that in case the documents were not produced before the trial Court, an opportunity could have been given to the prosecution to produce the same.

Shri Bhobe, the learned Counsel on behalf of the accused, submits that the objection that the order was interlocutory was not taken before the learned Sessions Judge. Learned Counsel further submits that the order of the learned JMFC affected his rights and, as such, it ought to have been considered as a intermediate or final order which could have been challenged in the Writ Petition.

In reply, Shri Ferreira, submits that the matter was essentially as regards the jurisdiction of learned Sessions Judge whether he could entertain a revision and, as such, the plea was raised or not, the learned Sessions Judge ought to have decided the same before proceeding to decide the revision.

It is not necessary to go into the merits of the submissions made before this Court. I must remind myself that this is a revision and is directed against order dated 20/08/2008 of the learned Sessions Judge. I have already observed that there was no reason assigned, firstly, as to why the said letter, on the basis of which possession of the first informant was sought to be proved, was not sent for the opinion of the handwriting expert during investigations. I fail to understand as to why the State ought to have filed firstly the application dated 15/12/006 and, thereafter, application dated 24/10/2007, when the Code gives ample powers not only to investigate, but, to carry on further investigation in the matter. The first order dated 25/01/2007 has attained finality. The view held by the learned Sessions Judge is plausible and cannot be faulted. There were no documents produced before the learned trial Court along with application dated 24/10/2007 and therefore the learned Sessions Judge was right in holding that without perusing the documents, the application could not be allowed. A party who approaches the Court has to be diligent. There was no question of giving further opportunity and delaying the trial. The State is always at liberty to take such remedies as are available to them under powers which are given to them under Code of Criminal Procedure, 1973. With the above observations, the revision petition is dismissed.