1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 2327 OF 2010 WITH MISC. APPLICATION NO. 345 OF 2010 T.N. Rohira ...Applicant/Accused Vs. CBI ACB Mumbai and Anr. ...Respondents ----- Mr.S.B. Pawar, Senior Counsel i/b. Ms. Anjali R. Waghmare for Applicant Mr. S.K. Shinde for Respondent No.1 for CBI Mr. J. P. Kharge -APP for State ----- CORAM: V.M. KANADE J. DATED: 29TH JUNE, 2010 P.C. 1. Heard the learned Counsel appearing on behalf of the Applicant and the learned Counsel for the Respondent No.1-Original Complainant. 2. This application has been filed under section 482 of the Code of Criminal Procedure by the Original Accused who has been prosecuted by the Respondent No.1 for the offences punishable under sections 7, 13(2) 2 r/w. 13 (1) (d) of Prevention of Corruption Act. 3. The Applicant is serving as an Income Tax Officer and the prosecution was launched against him. In this application, the Applicant is seeking the following reliefs: (a)That the record and proceedings of Special Case No. 81/2001 may be called for perusal of this Hon ble Court and to determine the legality and propriety of Evidence laid by the prosecution against the Applicant with regard to Exhibit A & B contents of Micro cassette Art. M & O (b)That the pending, admission and final hearing of the Application the proceedings in Special Case No.81/01 may be stayed. (c) That the content of Exhibit A & B , contents of Micro Cassette Art. M & O be declared by the order of this Hon ble Court to be inadmissible and ordered to be expunged from the record and 3 proceedings of Special Case No.81/2001 pending before Special Judge City Civil and Sessions Court, Mumbai. 4. The Learned Counsel appearing on behalf of the Applicant submitted that the prosecution had not complied with the mandatory provisions of sections 154 to 157 of the Cr.P.C. Secondly, it is submitted that the Micro Cassette was not given to him in 2010 when the charge sheet was filed and subsequently, he had to file an application before the Court, when the complaint was filed by the Income Tax Department and after the order was passed by the Court the Micro Cassette was given. It is submitted that there are several irregularities in recording of transcript of the said cassette. He submitted that the procedure laid down by the High Court for recording of this transcript also has not been followed by the prosecution and, as such, there was every possibility that this cassette may has been tampered by the prosecution. It is, therefore, submitted that the 4 trial court had erred in exhibiting the contents of the Micro Cassette. It is submitted that this Court may declare that contents of the said exhibits A and B, contents of the Micro Cassette Art. M and O are inadmissible and should be expunged from the record. The learned Counsel for the Applicant submitted that the cross examination of the witnesses is over and the trial court has noted the objection raised by the Counsel for the Applicant. The trial court, however, observed that the said objection could be considered at the time of the argument. He submitted that since the mandatory provisions of sections 154 to 157 were not complied, the said procedure followed for the execution of these documents was also illegal. He also submitted that the trial court ought to have decided the said objection immediately instead of relegating the matter to the final hearing. 5. Shri Shinde, the learned Counsel appearing on behalf of the Respondent No.1 submitted that the 5 present application was filed under section 482 of the Cr.P.C. He submitted that the relief claimed by the Applicant was in the nature of questioning the legality and propriety of the evidence adduced by the prosecution and in respect of procedure followed by the prosecution for recording the FIR. He submitted that such an application at the most will be maintainable under section 397 of the Cr.P.C. and it was, therefore, urged that the application under section 482 of the Cr.P.C. was not maintainable. Secondly, he submitted that the trial court has to followed the proper procedure of recording objection raised by the Applicant and the trial court, therefore, has made an observation that the said objection would be decided at a later stage. It is, therefore, submitted that the present application was filed at a premature stage since the trial court was already seized of the matter. Lastly, it is submitted that the objection regarding the admissibility of the documents was raised in 6 March, 2010, the present application was filed in May, 2010 and by this time, the prosecution witnesses have been examined and only the statement under section 313 is to be recorded. He, therefore, submitted that on this ground also, this Court may not entertain this application at this stage. 6. After having heard both the Counsel at length, in my view, there is much substance in the submission made by the learned Counsel for the Respondent No.1. The Trial Court has heard the objection of the counsel for the accused and, thereafter, the Court has observed that this objection could be considered at the time of argument of the case. 7. In my view, since the objection is raised by the Applicant and the same has been noted by the trial Court and the objection is yet to be decided at the time of final hearing of the case, no prejudice is caused to the Applicant. Same is the case of the objection in respect of admissibility of the contents 7 of the Micro Cassette which was produced later on. Here also, though initially the said cassette was not handed over to the accused at the time of filing of the chargesheet, subsequently, this cassette was handed over and, therefore, no prejudice has been caused to the accused as a result of delay in handing over the said documents. The accused has raised the objection regarding admissibility of the said documents and the trial court is yet to decide the said issue. 8. This being the position, in my view, it would not be appropriate for this Court to go into the question of legality and propriety of the procedure followed by the Trial Court regarding the recording of the evidence. It is always open for the Applicant to raise the issue which was raised before the Court at the time of final hearing of the case. As it is, the evidence of the prosecution is over and the statement of the accused is yet to be recorded under section 313 of the Cr.P.C. The trial is almost over. It is, 8 therefore, one more ground for not entertaining this application at this stage. 9. The criminal application, therefore, is dismissed. The Trial Court shall expedite the hearing of the criminal case. 10. Misc. Application No. 345 of 2010 does not survive and, accordingly, is disposed of. (V.M. KANADE J.) 9