1 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION WRIT PETITION NO. 2242 OF 2009 Yusuf Suleman Baugwala ... Petitioner versus The State of Mahashtra ... Respondent ... Mr. S.M. Gorwadkar i/b Rohit V. Pawaskar for the petitioner Ms.A.T. Jhaveri APP for the State. CORAM : D.G. KARNIK, J. DATED : 6th November 2009 P.C. 1. By this writ petition, the petitioner takes exception to the order dated 5th August 2009 passed by the learned Adhoc Addl. Sessions Judge at Sewree, dismissing the Revision Application filed by the petitioner. 2. A crime for the offences punishable under sections 381, 381, 403, 405 of the Indian Penal Code and Criminal Case No. 167/PW/2004 was registered against the petitioner under C.R.No.140/04 in the police 2 station at Nagpada. After investigation, the police have filed a charge sheet against the petitioner before the Metropolitan Magistrate, 15th Court, Mazgaon. The prosecution is numbered as Criminal Case no. 167/PW/04. Therein the petitioner applied for a discharge. By an order dated 3rd October 2006, the Metropolitan Magistrate rejected the application for discharge. Aggrieved petitioner filed a revision bearing Criminal Revision Application no.324 of 2006 in the court of Sessions, Greater Mumbai against the order of the Magistrate. In the revision application, the petitioner made an application for permission to produce a Compact Disc (CD) said to contain a recording of the conversation alleged to have taken place between him and the Investigating Officer. According to the petitioner, in the said conversation, the Investigating Officer had told the petitioner that he (Investigating Officer) was aware that the crime registered against the petitioner was false but he was helpless in the matter as he had been instructed by the seniors to register the crime and institute the prosecution. The learned Sessions Judge hearing the revision rejected the said application and by the very order he also dismissed the revision application. That order is impugned in the present petition. 3 4. I have gone through the reasons given (paragraph no.7) by the revisional court for rejecting the application wherein the learned Sessions Judge has after holding that additional evidence can be permitted to be adduced in a revision application has further held that the additional evidence can be permitted only if the revisional court finds that such evidence is necessary. In Vinod Kumar Vs. Smt. Mohorani, 1990 Cr.L.J 2068 cited by Mr.Gorwadkar the Allahabad High Court has held that powers of a Sessions Judge hearing a revision are co-extensive with the powers of the High Court hearing the revision and those powers include the power to take further evidence if the Court thinks that the additional evidence is necessary for proper adjudication of the case. Thus, the view taken by the learned Sessions Judge that he has the power to receive additional evidence if it was necessary for proper adjudication of the case appears to be in consonance with the view taken by the Allahabad High Court. No other decision taking a contrary view is cited before me. 5. In the light of what is stated above, it would be necessary to examine whether in the facts of the case additional evidence was necessary for proper adjudication of the revision application arising out of the petitioner’s application for discharge. 4 6. The learned Sessions Judge has held that the additional evidence was not necessary in two lines which reads as follows:- "In the present case, revision is not against the final order but against the interlocutory order. Therefore, I do not think that the evidence of the said CD is necessary." 7. In my view, this was an erroneous approach. Having held that the revisional court has the power to take additional evidence, the Sessions Judge ought to have considered on merits whether the evidence of a CD alleged to be the recording of the conversation between the petitioner and the Investigating Officer was necessary for considering the petitioner’s application for discharge. The order passed by the Magistrate dismissing the application for discharge cannot be said to be an interlocutory order. The learned Sessions Judge erred in holding that since it was the interlocutory order the additional evidence of a CD was not necessary. In my view, the learned Sessions Judge ought to have considered whether evidence contained in the CD was necessary for the purpose of considering the application of the discharge made by the petitioner. 5 8. Since the CD and its transcript is not before this court, it would not be appropriate to express any opinion as to whether the CD is genuine whether the alleged conversation did at all take place and the effect of the alleged conversation between the petitioneer and the Investigating Officer and in particular of the statement made by the Investigating Offficer that he was aware that the complaint was false but that he was compelled to proceed in the matter because of instructions from the seniors. If the revisional court after consideration of the petitioner’s request on merits allows the additional evidence it would be open to it to consider the genuineness of the CD as well as the effect of the alleged conversation and the evidential value thereof. 9. With the aforesaid observations, the impugned order is set aside and the matter is remanded back to the revisional court for deciding it afresh in the light of observations made herein. (D.G. KARNIK,J.)