vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION WRIT PETITION NO.2749 OF 2006 WRIT PETITION NO.2749 OF 2006 WRIT PETITION NO.2749 OF 2006 Pratapsingh H. Hajari ... Petitioner V/s. G.S.H. Irani & Ors. ... Respondents Mr.C.S. Joshi for Petitioner Mr.H.J. Dedhia, APP, for Respondent-State CORAM: SMT.NISHITA SMT.NISHITA SMT.NISHITA MHATRE, J. MHATRE, J. MHATRE, J. DATED: JUNE 9, 2008 JUNE 9, 2008 JUNE 9, 2008 P.C.: P.C.: P.C.: . The petitioner has filed an application for production of a document i.e. the original sale deed dated 28.4.1964 which according to him the respondents have forged and cheated him. The custody of this document according to the petitioner is with the respondent and therefore, he had filed an application before the JMFC, Palghar to direct the respondents to produce the document and in the alternative to allow him to lead secondary evidence to prove that document. 2. The learned JMFC has allowed the application by directing the document to be produced by 19.12.2004. The JMFC has directed that in the event of failure by the accused to produce this document, the complainant would be at liberty to adduce secondary evidence to prove the document. : 2 : 3. A revision application was filed by the accused contending that by directing production of the document, his rights under Article 20(3) of the Constitution of India have been violated. It was also contended that the Court could not have directed the production of the document while simultaneously permitting the complainant to lead secondary evidence. These submissions found favour with the I Adhoc Additional Sessions Judge, Palghar who by his order dated 1.12.2005 has set aside the order of the JMFC. 4. It is contended on behalf of the petitioner that the document is essential to his case and since it is already executed in the civil suit pending between the parties, the Court has rightly directed the accused to produce the document. It is also submitted that assuming it is correct that an accused cannot be directed to produce a document which could incriminate him, the petitioner-complainant must be allowed to lead secondary evidence relating to that document. 5. The learned advocate for the respondents submitted that the writ petition is not maintainable as a remedy is available to the petitioner of filing a revision under section 397 of the CrPC. It is also contended that the Sessions Court has rightly held that : 3 : there is a violation of the rights of the accused by directing them to produce the sale deed. He draws my attention to article 20(3) of the Constitution of India. The learned advocate then submits that the trial Court had erred in permitting the petitioner to lead secondary evidence. No evidence at all has been led by the parties and, therefore, the application itself was not maintainable and the order impugned need not be disturbed, according to him. 6. There is no doubt that the accused in a criminal proceeding cannot be directed to produce documents which could incriminate him in a criminal proceeding. Therefore, the Sessions Court was correct in passing the order disallowing the application for production of the document. However, as regards leading of secondary evidence the application itself in my opinion, is premature. It is necessary for the petitioner to first lead evidence to establish the fact that such a document exists and is in custody of the accused and that he be allowed to lead secondary evidence because the accused has failed to produce the document on record. 7. In my opinion, there is no need to interfere with the order passed by the Sessions Court. The submission of the learned counsel for the respondent that the petition is not maintainable is incorrect. : 4 : Reliance placed by him on subsection (3) of section 397 does not in any manner lead to the inference that it is only criminal revision application which is maintainable and not a writ petition. Section 397 merely stipulates that a party who has already filed a revision in the Sessions Court cannot file another revision in the High Court against the same order. However, this does not automatically mean that a party aggrieved by the decision of the Sessions Court in revision must approach the High Court in revision. 8. The petition is therefore rejected. However, in the event the petitioner lays a foundation for leading secondary evidence during the course of the evidence, the petitioner may make an application to the JMFC for leading secondary evidence which the learned Magistrate will consider in accordance with law.