IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.1325 OF 2008 Smt.Shagufta Rahim Khan .. Petitioner Vs. Rizwan Ibrahmi Kazi & Ors. .. Respondents Mr.Viresh V. Purwant for the petitioner. Mr.Nitin Trivedi i/by Mr.D.C.Trivedi for respondent No.2. Mr.Y.S.Shinde, A.P.P for respondent No.3. CORAM CORAM CORAM : A.S.OKA, J. : A.S.OKA, J. : A.S.OKA, J. DATE : 04th September 2008. P.C.: . Heard the learned advocate for the petitioner, the learned advocate for the 1st and 2nd respondents and the A.P.P for the State. The petitioner is the first informant who lodged F.I.R alleging commission of offences under section 498-A, 504, 506 read with section 34 of the Indian Penal Code and sections 3 and 4 of the Dowry Prohibition Act. The chargesheet was filed against the accused. On application made by the Public Prosecutor at Exhibit 58, the learned Judge passed an order on 29th August 2006 directing that attendance of Mr.Mahesh Wagh, handwriting expert as a witness was dispensed with and a Court Commissioner be appointed for recording evidence of the said witness. An application : 2 : was filed by the 1st and 2nd respondent accused praying for recall of the order. By the impugned judgment and order dated 06th December 2006, the earlier order passed by the learned Judge appointing the Court Commissioner for examining Mr.Mahesh Wagh has been set aside. For challenging the said order, a revision application was filed by the State which has been dismissed. 2. Submission of the learned counsel appearing for the petitioner is that there was no power vesting in the learned trial Judge to recall his own order dated 29th August 2006. He submitted that the opinion of Mr.Mahesh Wagh, a handwriting expert is a part of the supplementary chargesheet. He submitted that apart from the fact that learned Magistrate had no power to upset his earlier order, the prosecution could have been always been permitted to examine Mr.Mahesh Wagh as a witness as the opinion of the said handwriting expert was already forming a part of the supplementary chargesheet. The learned counsel appearing for the 1st and 2nd respondents invited my attention to cross-examination of the Investigating Officer. He submitted that xerox copies of certain documents and a xerox copy of the opinion of Mr.Mahesh Wagh were handed over by the petitioner to the Investigating Officer and : 3 : that is the reason why the said xerox copies form part of the supplementary chargesheet. He submitted that the case is at the stage of recording statement of the accused under section 313 of the Code of Criminal Procedure, 1973. 3. It is an accepted position that the opinion of Mr.Mahesh Wagh, a handwriting expert was not obtained by the Investigating Officer during the course of investigation but the same has been privately obtained by the petitioner. It appears that xerox copies of documents submitted by the petitioner to Mr.Mahesh Wagh alongwith a copy of opinion of Mr.Mahesh Wagh obtained by the petitioner was handed over to the Investigating Officer and therefore, the same forms part of the supplementary chargesheet. Under the impugned order dated 06th December 2006 the learned Judge has noted that at highest the report of Mr.Mahesh Wagh can be said to be a part of the private investigation carried out by the petitioner and therefore there was no occasion for the prosecution to examine Mr.Mahesh Wagh as a witness. The revisional Court has noted that the opinion of the handwriting expert was privately obtained. 4. It is true that there is some merit in the : 4 : submission of the learned counsel for the petitioner as regards the power of the criminal Court to recall its earlier order. The petitioner has invoked provisions of Article 227 of the Constitution of India as well as section 482 of the Code of Criminal Procedure, 1973. Apart from the power of the learned Magistrate to pass the impugned order, factually the learned Magistrate appears to be right when he has observed that the opinion of Mr.Mahesh Wagh was not obtained during the course of investigation but it is an opinion obtained by the petitioner privately at her own cost. It is well settled that extra-ordinary jurisdiction of this Court in Article 227 of the Constitution of India cannot be exercised merely because there is some illegality in the impugned order and the jurisdiction need not be exercised if substantial justice has been done. Power under section 482 of the said Code has to be exercised sparingly and that also in a very rare case. Looking to the factual aspects as narrated above, the power under section 482 of the said Code cannot be exercised at the instance of the petitioner. Accordingly, petition is rejected. It is made clear that no adjudication is made by this Court on the merits of the pending case and on right of the prosecution to take appropriate steps in the matter. : 5 : (A.S.Oka,J)