1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD Cri. Writ Petition No. 41/10 Shri Mahavir Urban Co-op Credit Society Ltd. Jalgaon (Through – Bharat Vasudeo Bendale Recovery Officer of above Credit Society) R/o 16, Vardhaman Chambers, Navi Peth, Jalgaon Tq. Jalgaon Dist. Jalgaon. .. Petitioner. Vs. 1 Shri Hemchandra s/o Jagannath Kale Age : 50 years, Occu. Agriculturist, R/o 31 Samartha Colony, M.J. College Road, At & Post. Jalgaon Tq. & Dist. Jalgaon. 2 The State of Maharashtra, .. Respondents. Smt. Monika Purnapatre, Advocate for petitioner. Mr. D.R. Korde, A.P.P. for respondent Respondent no.1 served absent. CORAM : A.V. NIRGUDE, J. Date : 20TH APRIL, 2010 ORAL JUDGMENT 1. The respondent no.1 is absent though served. 2. This writ petition challenges the legality and correctness of the order passed by learned Sessions Judge, Jalgaon in Cri. Revision Application No. 165/2009 decided on 25/11/2009. The petitioner is the complainant in Summary Criminal Case No. 3172/2005 pending before 2 the Judicial Magistrate (First Class), Jalgaon, alleging offence punishable under Section 138 of Negotiable Instrument Act. The respondent no.1 is the accused. During the cross examination of the petitioner’s witness, the respondent no.1 moved an application under section 91 and under section 254(2) of Cr.P.C. and sought directions against the petitioner/complainant to produce certain documents. The trial court rejected the application saying that the documents sought to be produced were not relevant etc.. The learned Sessions Judge however, reversed the order and allowed the application seeking production of documents. 3. The main objection to the legality of the impugned order of the revisional court is that the learned Sessions Judge could not have exercised the powers under section 397 of the Cr.P.C. in view of the limitation to such powers provided in sub section (2). Sub section (2) of Section 397 Cr.P.C. laid down a rule that powers of revision should not be exercised in relation to any interlocutory order passed in a trial etc.. The learned advocate appearing for the petitioner asserted that the impugned order passed by the trial court was an interlocutory one. She placed reliance on a recent judgment of Supreme Court in the case of Sethuraman Vs. Rajamanickam (2009) 5 S.C.C. 153. This judgment incidentally was also shown to the learned judge of the revisional court. The fact situation of the case before the Supreme Court was almost similar to the facts of this case. In that case also, an application was made by an accused for production of documents 3 which were with the complainant. The supreme court inter alia held that the order passed by the Trial Court refusing to call documents, was an interlocutory one. The relevant portion of this judgment reads as under. 5. “Secondly, what was not realised was that the orders passed by the trial court refusing to call the documents and rejecting the application under Section 311 Cr.P.C., were interlocutory orders and as such, the revision against those orders was clearly barred under Section 397(2) Cr.P.C.. The trial court, in its common order, had clearly mentioned that the cheque was admittedly signed by the respondent-accused and the only defence that was raised, was that his signed cheques were lost and that the appellant complainant had falsely used one such cheque. The trial court also recorded a finding that the documents were not necessary. This order did not, in any manner, decide anything finally. Therefore, both the orders i.e. one on the application under Section 91 Cr.P.C. For production of documents and other on the application under Section 311 Cr.P.C. for recalling the witness, were the orders of interlocutory nature, in which case, under Section 397(2), revision was clearly not maintainable. Under such circumstances, the learned Judge could not have interfered in his revisional jurisdiction. The impugned judgment is clearly incorrect in law and would have to be set aside. It is accordingly set aside. The appeals are allowed”. 4. The only difference in the reported case and the present case is, in this case, the respondent no.1 accused made his application under 4 section 254 and section 91 of Cr.P.C.. He did not make his application under section 311 as was the case in the reported judgment. Bo the the sets of the provisions are more or less similar. 5. The learned judge of the revisional court virtually brushed aside and ignored the judgment of the Supreme Court in the case of Sethu Raman Vs. Rajamanickam supra, particularly the ratio laid down in para 5 of the judgment. The learned judge should have relied upon some other judgment/s of the Supreme Court which in his opinion laid down correct law. The learned judge, in fact said “the Supreme Court of India had occasion to examine the meaning of term ‘interlocutory order’ in various pronouncements” But did not refer to such judgments/pronouncements. The learned judge tried to define the term “interlocutory order” in his own words. What is stated in para 19 about the term ‘interlocutory order’ might be correct but in the background of the judgment of sethu Raman's case (supra) referred to by the learned judge, it was inappropriate intellectual exercise. The learned judge could not have said that “it was not necessary and proper to discuss the whole concept as to what amounted to an interlocutory order”, particularly when the judgment of Supreme Court referred to above was shown to him. In view of this, the order passed by learned Magistrate was an interlocutory one and the learned Sessions Judge should not have disturbed it, while exercising his revisional powers under section 397 of Cr.P.C.. 6. Turning to the provisions of Section 91 and 254 of Cr.P.C., let 5 me now consider the viability of the application which was made specifically under section 91 and 254 of Cr.P.C.. Section 91 and 254 reads as under. Section 91 Cr.P.C. :- (1) Whenever any Court or any officer in charge of a police station considers that the production of any document or other ting is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order. (2) Any person required under this section merely to produce a document or other thing shall be deemed to have complied with the requisition if he causes such document or thing to be produced instead of attending personally to produce the same. (3) Nothing in this section shall be deemed - (a) to affect sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872) or the Bankers’ Books Evidence Act, 1891 (13 of 1891), or (b) to apply to a letter, postcard, telegram or other document or any parcel or thing in the custody of the postal or telegraph authority. Section 254:- (1) If the Magistrate does not convict the accused under section 252 or section 253, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution, and also to hear the accused and take all such evidence as he produces in his defence. (2) The Magistrate may, if he thinks fit, on the application of the prosecution or the accused, issue a summons to any witness directing 6 him to attend or to produce any document or other thing. (3) The Magistrate may, before summoning any witness on such application, require that the reasonable expenses of the witness incurred in attending for the purposes of the trial be deposited in Court. 7. Indeed, section 91 gives the Court power to issue summons for production of a document which is necessary and desirable for the purpose of a trial. The question is whether in the fact situation and at the stage when it was made, an application under section 91 could have been made? The answer is in negative. The petitioner/ complainant was leading evidence in support of their case. Their witness was being cross examined. I went through the deposition of this witness(a copy was shown to me by the ld. Advocate of the petitioner). The respondent no.1/ accused, it seems, by then had not indicated a specific defence. At the most it can be said that, he was trying to suggest that he was not a member of the petitioner /complainant Co-operative society and so there was no question of the petitioner Society giving him loan. He should have suggested to the procecution witness that he did not become member of the Society; he did not execute any document seeking loan; he did not receive any loan etc. Only after this denial the prosecution could have realised as which other facts they ought to prove for substantiating their case. They would themselves produce relevant documentary evidence to do so. And if despite denials of the 7 respondent/accused the prosecution would not have produced the required documents they would failed to prove their case. In this factual background the application that was moved by the respondent/accused on which the impugned order was passed, appears to be a mischievous one. It was moved clearly to start a fishing inquiry and ultimately to delay the trial. 8. Assuming, even after recording of the prosecution evidence the respondent wanted to place reliance on certain relevant documents such as the loan agreement etc. he could have called for such documents when his turn to lead evidence in defence would have arrived. Section 254(1) Cr.P.C. clearly lays down this procedure. It says that the Court should first record evidence of the prosecution and it is, after this, the accused would have his turn to lead his evidence in his defence. So, the application moved at that stage was totally mistimed and on that ground also it deserved to be rejected. 9. The question whether the order rejecting the respondent no.1’s application seeking production of documents, decided any right of any party to the litigation finally. As said above, the application was mistimed and an appropriate application seeking production of appropriate document (appropriate and relevant to the defence of the respondent no.1 / accused) could have been made at the time of recording of evidence of the defence. So, even after rejection of this application, the respondent no.1/accused had ample opportunity to get the relevant document produced before Court in his defence. The 8 order rejecting the respondent No.1’s application really did not cause any prejudice to him or his defence. 10. The writ petition thus would succeed. It is allowed in terms of prayer clause ‘C’. [A.V. NIRGUDE, J.] tsk/ok