SCR.A/597/2008 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No. 597 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge? ========================================================= KANTIBHAI KEMJIBHAI CHAUDHARY - Applicant(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ========================================================= Appearance : MR PRAKASH K JANI for Applicant(s) : 1, MR RC KODEKAR, ADDL. PUBLIC PROSECUTOR for Respondent(s) : 1, NOTICE SERVED BY DS for Respondent(s) : 2, MR PRATIK B BAROT for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 18/09/2008 ORAL JUDGMENT 1. Rule. Mr.R.C.Kodekar, learned APP waives service of Rule on behalf of the respondent No.1. Mr.Pratik Barot, learned Advocate waives service of SCR.A/597/2008 2/4 JUDGMENT rule on behalf of the respondent No.2. With the consent of the learned Advocates appearing on behalf of the respective parties, the petition is taken up for final hearing today. 2. By way of this petition under Article 227 of the Constitution of India, the petitioner – original complainant has prayed for an appropriate Writ, order quashing and setting aside the order dated 05.09.2007 passed by the learned Additional Sessions Judge, 3rd Fast Track Court, Mehsana (Visnagar Camp) below Exh.33 in Sessions Case No.8 of 2007; order dated 06.10.2007 passed by the learned Additional Sessions Judge, 3rd Fast Track Court, Mehsana (Visnagar Camp) below Exh.36 in Sessions Case No.8 of 2007 and order dated 26.02.2008 passed by the learned Additional Sessions Judge, 3rd Fast Track Court, Mehsana (Visnagar Camp) below Exh.67 in Sessions Case No.8 of 2007 by which the learned trial Court has allowed the said applications by sending the letters (referred to in the said applications) to handwritten expert. It appears that the learned trial Court has exercised the powers under Section 173(8) of the Criminal Procedure Code. SCR.A/597/2008 3/4 JUDGMENT 3. Mr.Thakor, learned Advocate appearing on behalf of the petitioner – original complainant has submitted that the letters in question do not form part of the charge-sheet papers and have not been brought on record under any provisions of Cr.P.C. It is further submitted that insofar as the defence is concerned, any evidence in defence can be brought on record only in accordance with provisions of Section 233 of the Cr.P.C. Therefore, it is submitted that order dated 05.09.2007; order dated 06.10.2007 and order dated 26.02.2008 passed by the learned trial Court are not in consonance with the provisions of the Cr.P.C. Though Mr.Barot learned Advocate appearing on behalf of respondent No.2 has tried to support the orders passed by the learned trial Court below Exh.33; Exh.36 and Exh.67, however, he is not in position to point out under which provisions orders passed by the learned trial Court are sustainable. Mr.Kodekar, learned APP has requested to pass an appropriate order. 4. Having heard the learned Advocates appearing on behalf of the respective parties and considering the facts and circumstances and impugned orders, it SCR.A/597/2008 4/4 JUDGMENT appears that the letters in question do not form any part of the charge-sheet papers and even they have not been brought on record under any provisions of the Criminal Procedure Code and/or by following necessary procedure for exhibiting and bringing the document on record. Under the circumstances, impugned order dated 05.09.2007; order dated 06.10.2007 and order dated 26.02.2008 passed by the learned trial Court cannot be sustained and are required to be quashed and set aside. 5. For the reasons stated above, the petition succeeds. Impugned orders dated order dated 05.09.2007; order dated 06.10.2007 and order dated 26.02.2008 are hereby quashed and set aside. Rule is made absolute accordingly. Ad-interim relief, if any, stands vacated forthwith. Registry is directed to send Writ to the learned trial Court immediately. [M.R.Shah,J.] satish