1 87 wp.719.10 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 719 OF 2010 Antonio Bernardo D'souza Through his constituted attorney Vilas Keshav Joshi. ... Petitioner Versus 1. State of Maharashtra. 2. Arun Keshav Joshi. ... Respondents ----- Mr. N.R.Bubna for the Petitioner. Mr. H.J.Dedhia, APP for Respondent No.1. Mr. R.S.Apte, senior counsel i/b Mr. M.S.Lagu for Respondent No.2. ----- CORAM : A.S.OKA, J. DATE : 10 th October, 2011. P.C. 1 Heard the learned counsel appearing for the Petitioner. 2 The Petitioner is the complainant in a private complaint alleging commission of offence under Sections 420, 463 and 465 of the Indian Penal Code. Process has been issued on the private complaint. 2 87 wp.719.10 3 The challenge in this petition is to the orders passed by the learned Magistrate on application at Exhibit – 29 and on notice to produce the documents and Exhibit – 31. 4 The application at Exhibit – 29 was made pointing out that in terms of the order passed by this Court in Criminal Application No. 386 of 2009, the document dated 8 th September, 1997 was sent to the Collector of District Raigad. In the said application, it is contended that the document is lying with the Collector for the purposes of impounding and therefore, till the document is received back, proceeding of the complaint should remain stayed. By the impugned order dated 25 th September, 2009, the learned Magistrate rejected the said application. 5 Exhibit – 31 is a notice to produce the documents addressed by the Constituted Attorney of the Petitioner to the accused calling upon him to file certain original documents set out therein on record of the complaint. It is stated in the notice that the accused has 3 87 wp.719.10 produced the said documents in a civil suit in the Court at Panvel. By the impugned order, the learned Magistrate rejected the said notice at Exhibit – 31. The learned Judge held that compelling the accused to produce the document, is nothing but violation of Article 20 (3) of the Constitution of India. 6 The learned counsel appearing for the Petitioner relied upon the decision of the Apex Court in the case of State of Bombay Vs. Kathi Kalu Oghad (AIR 1961 Supreme Court 1808). The learned counsel submitted that in view of the said decision, the learned Magistrate has committed an error by observing that by ordering the production of documents, violation of Article 20(3) of the Constitution of India will be committed. 7 I have carefully considered the submissions. As far as the application at Exhibit – 29 is concerned, the same is misconceived inasmuch as even according to the case of the Petitioner, the original document mentioned therein has been misplaced in the office of the 4 87 wp.719.10 Collector. The prayer in the application was that till the impounded document was received by this Court, the proceedings of the complaint should be stayed. The learned Magistrate could not have stayed the trial on the basis of such application. The document at Exhibit – 31 is a notice to produce the documents. The procedure of the prosecution giving a notice to the accused of producing documents in custody of accused is unknown to the Code of Criminal Procedure, 1973. The decision of the Apex Court in the case of State of Bombay Vs. Kathi Kalu Oghad (supra) will have no application inasmuch as the Apex Court was considering the scope of Section 27 of the Indian Evidence Act. After the process was issued, the learned Magistrate could not have compelled the accused to produce the documents as sought by the Petitioner by giving a notice to produce the documents. The petitioner will have to adopt appropriate proceedings. 8 In the circumstances, no fault can be found with the order passed below application at Exhibit – 29 and notice to produce the documents at Exhibit – 31. There is no merit in the petition and the 5 87 wp.719.10 same is rejected. 9 Rejection of the petition will not preclude the Petitioner from taking out appropriate proceedings. [ A.S.OKA, J ]