IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR CRIMINAL MISCELLANEOUS PETITIO <^t? OF 2011 PETITIONER .....^6sl"-^r:-- S^il^^A;./ JJQ'.^k RESPONDENT Mehul Solanki, S/o Kantibhai Solanki, aged about 36 yeare, R/o 125, Arya Nagar, Durg, P.S.: Mohan Nagar, District-Durg (C.G.) VERSUS Ajay Sahu,S/o Gambhir Sahu, aged about 52years, R/o village-Nikum, P.S.-Anda, Tehsil & District-Durg (CG) CRIMINAL MISCELLANEOUS PETITION UNDER SECTION 482 OF THE CQBE. OF CRIMINAL PROCEDURE ^ sl. HIGH COURT OF CHHAmSGARH : BILASPUR S.B^: HON'BLE SHRI MANINDRA MOHAN SHRIVASTAVA.J. Cr.M.PNo.276/2011 PETITIONER MehulSolanki Versus Ajay Sahu RESPONDENT (Petition u/S 482 ofthe Cr.P.C) Appearance: Srat. Fouzia Mirza, counsel for the petitioner. Shri Vipin Tiwari, counsel for fhe respondent. ORAL- ORDER (Passedon 30.8.2011) Heard. 2. This petition under Section 482 of Cr.P.C. has been preferred by the petitioner aggrieved by order dated 26.4.2011 passed in Cr.Rev. No.64/11, by which the order dated 24.2.2011 passed by the Magistrate has been affirmed. 3. Learned counsel for the petitioner submitted that earlier the respondent-accused had moved an application under Section 45 of the Evidence Act for opinion of Handwriting Expert in respect of two documents-Ex. D-1 & Ex. D-2, which was rejected by the learned trial Court vide its order dated 30th November, 2010. Later on, the respondent moved another application on 15.2.2011 (Annexure P-4) for the same relief which was earlier rejected and now the learned trial Court has allowed the application only on fhe ground that the respondent has been granted opportunity to SfiSaS^B^a lead defence evidence, ignoring that against earlier order dated 30th November, 2010, no remedy was taken and the order attainted finality. 4. Next submission of leamed counsel for the petitioner is that even otherwise, the exercise of jurisdiction by the Court below is mechanical, inasmuch as neither the trial Court nor the revisional Court have considered as to why the examination of Ex. D-1 85 D-2 is necessary for effective defence by the respondent. It is submitted that in the orders passed by both the Courts below, there is no whisper about the nature of the documents of which examination is sought and on mere asking, the application of the respondent has been allowed. 5. On the other hand, learned counsel for the respondent submitted that earlier the respondent's defence was closed by the trial Court vide order dated 5.10.2010. The respondent had later on, moved an application for expert opinion ofEx. D-1 85 D-2 on 18.11.2010, which was rejected by the trial Court on 30th November, 2010 on the groiind that defence has already been closed and no further opportunity could be giveri and as such, the application had no merit. But later on, the respondent filed a revision against order dated 5.10.2010, which was allowed vide order dated 31st January, 2011, giving the respondent, opportunity to lead the defence witnesses and in this changed circumstances, application was filed on 15.2.2011 for examination of two documents, which have been rightly allowed by the trial Court and affinned by the revisional Court. B 6. The first subinission of learned counsel for the petitioner that once respondent's application for examination of Ex.D-1 85 D-2 was rejected by the trial Court vide its order dated 30ttl October, 2010, second application could not be entertained, deserves to be rejected. A pen-isal of order dated 30th November, 2010 shows that the main operative reason for rejection of respondents application under Section 45 of the Evidence Act was that as the defence of the respondent has been closed on 5.10.2010, and the case is listed for final arguments, the appUcation cannot be allowed. It is not in dispute that later on, order dated 5.10.2010, closing defence of the respondent, was assailed in revision and vide order dated 31st January, 2011, the said revision was allowed and respondent's defenece was again opened and he was granted opportunily to lead defence evidence. In these changed circumstances, in the opinion of this Court, fresh application for obtaining expert's report on the questioned dociiments cannot be said to be not maintainable. 7. The other submission of leamed counsel for the petitioner merit acceptance. Even though there was no bar before the leamed trial Court to consider the prayer for examination of some of the documents in the chaiiged circumstances, the jurisdiction could not be exercised mechanically, as has been done in the present case. A perusal ofthe order dated 24.2.2011 shows that the only reason for allowing respondent's application for examination of questioned documents is that now the Court has allowed the ^/ respondent to lead defence witnesses, setting aside the earlier order dated 5.10.2010. The learned trial Court did not examine the nature of the document and the need for calling for expert's opinion on the said documents. The order of the revisional Court also shows that necessity of the report of expert has not been examined with reference to the nature of the documents in the light of defence which has been put forth by the respondent. Therefore, in the opinion of this Court, order dated 24.2.2011 passed by fhe Magistrate as also order dated 26.4.2011 passed by the revisional Court cannot be sustained in law and are liable to be set aside. 8. In the result, the order dated 24.2.2011 passed by the Magistrate as also order dated 26.4.2011 passed by the revisional Coiirt are set aside and the matter is remanded to the trial Court for re- consideration of the application of the respondent in its proper perspective, taking into consideration the nature of document and in the light of the defence proposed by the respondent. The application shall be decided by the trial Court within a period of one month from the date bf receipt of copy of fhis order. 9. The parties shall appear before the leamed trial Court on IQt" October. 2011. 10. The petition is accordingly aUowed. ^a'^^ ^:^^^ Praveen