* 1 * W.P. 1584.2010 3 August, 2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRI. WRIT PETITION NO. 1584 OF 2010 Anilkumar Laddharam Dhameja .... Petitioner V/S. Dama Shantaram Choudhary and Ors. .... Respondents Mr. G.G. Togani, Advocate for the petitioner. Mr. Sandeep Patil, Advocate for respondents no.1 to 6. Mrs. P.H. Kantharia, APP for the State-respondent no.7. CORAM :- Smt. R.P. SondurBaldota, J. 3rd August, 2011. P.C. :- 1. The short question to be considered in this appeal, is whether, the petitioner herein should be permitted to produce a document in evidence which document does not form part of the chargesheet. The trial Court by the impugned order dated 19th April, 2008 has dismissed the petitioners application (Exhibit-32) for the purpose by the State. The petitioner is the complainant. On his complaint, FIR under Sections 143, 339, 427 and 447 read with Section 34 Indian Penal Code came to be registered. 2. The dispute between the parties is about ownership of the open space on the rear side of Gala No.3, House No. 22, City Survey No. 1226. The complainant carries on business of provision stores from * 2 * W.P. 1584.2010 3 August, 2011 Gala No.3. A part of his premises has been taken over for road widening. Respondents no.1 to 6 claim to be the owners of the open space vide a registered sale-deed from the owner. They allege that since the structure of the petitioner is affected by widening of the road adjoining to the structure, he is now trying to encroach upon the open space belonging to them. The evidence in the matter has commenced. When examination-in-chief of the complainant was partly recorded, the learned APP filed the application at Exhibit-32 for production of the document of agreement of sale in respect of the open space between the complainant and one Kanhaiyalal Gupta. The application was opposed by respondents no.1 to 6 on the ground that since the document does not form part of the chargesheet the same could not be produced before the Court during the course of evidence. The learned Magistrate rejected the application with the following observations :- 6. “ In the present case I.O. has not further investigated case and he himself not moved the Court for tendering the documents by way of filing further report regarding such evidence. On the other hand, the complainant on his own after lapse of 6 years, when the case is fixed for recording evidence, seeks to tender the document being used as evidence. Said document is not seized during the course of investigation and is not part of chargesheet. The complainant has not given any satisfactory reason why he has not tendered said document to police/I.O. During the investigation or why he has not produced said document when he lodged the complaint in the Court. It is not the case of complainant that there is no proper or o bjective investigation by I.O. or there is * 3 * W.P. 1584.2010 3 August, 2011 any defence in the investigation. This therefore leads to infer that the documents are now sought to be tendered by the complainant only to fill the lacuna in the prosecution case. Therefore in the circumstances of the case and in view of the above-cited ruling of Hon’ble Bombay High Court, the application deserves to be rejected.” 3. No fault can be found with the observation of the learned Magistrate. It has also been further pointed out by the learned counsel for the respondents that this document has been in possession of the original complainant for a long time. It has infact been used by him in the civil proceedings filed in respect of the same land. But the complainant did not produce the document before the Investigation Officer at the time of investigation into the complaint. As has been rightly noted by the learned Magistrate that there is no explanation whatsoever even offered in the application for non-production of the document earlier. 4. The learned counsel for the petitioner, submits that, additional documents can always be produced after submitting chargesheet under Section 173 Criminal Procedure Code. In this connection, he relies upon the decision of the Apex Court in the case of Central Bureau of Investigation V/s. R.S. Pai and another dated 3rd April, 2002 in Appeal (Cri.) No. 1045 of 2000. The facts in the proceedings before the Apex Court, were slightly different. The documents not forming part of the * 4 * W.P. 1584.2010 3 August, 2011 chargesheet to be produced had been gathered during further investigation into the complaint. The Apex Court held that, if further investigation after filing of the chargesheet is not precluded, then, there is no question of not permitting the prosecution to produce additional documents which were gathered prior to or subsequent to the investigation. In the same decision, the Apex Court, after considering the provision of Section 173 Criminal Procedure Code, has further observed as follows :- . “ From the aforesaid sub-sections, it is apparent that normally, the Investigation Officer is required to produce all the relevant documents at the time of submitting the charge-sheet. At the same time, as there is no specific prohibition, it cannot be held that the additional documents cannot be produced subsequently. If some mistake is committed in not producing the relevant documents at the time of submitting the report or charge-sheet, it is always open to the Investigation Officer to produce the same with the permission of the Court. In our view, considering the preliminary stage of prosecution and the context in which Police Officer is required to forward to the Magistrate all the documents or the relevant extracts thereof on which prosecution proposes to rely, the word shall’ used in sub-section (5) ‘ cannot be interpreted as mandatory, but as directory. Normally, the documents gathered during the investigation upon which the prosecution wants to rely are required to be forwarded to the Magistrate, but if there is some omission, it would not mean that the remaining documents cannot be produced subsequently.” 5. It is thus seen that there is no absolute bar in production of additional documents after filing of the chargesheet. However, this cannot be done in a routine manner since the law provides that the * 5 * W.P. 1584.2010 3 August, 2011 documents to be relied upon by the prosecution form part of the chargesheet. Production of additional documents at the subsequent stage must be by way of exception. As has been observed by the Apex Court, the production is to be done with permission of the Court. Since such production is by way of an exception to the normal rule, the applicant must make out a case for departing from the normal rule by setting out satisfactory reasons. The applicant must explain the reason for non-production of the documents before the police during investigation or at any other appropriate stage. In the absence of satisfactory explanation, there cannot be departure from the procedure set out in Section 173 Criminal Procedure Code. 6. It is already noted above, that the petitioner has failed to make out case justifying production of the document at such a belated stage. The learned Magistrate has therefore taken a correct view of the matter and rejected the application. There is no need to interfere with the order. Hence, the petition is dismissed. [SMT. R.P. SONDURBALDOTA, J]