IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.2349 OF 2008 Mustanshir Kasamali Vakharia .. Applicant Vs. State of Maharashtra & Ors. .. Respondents Mr.C.K.Pendse for the applicant. Mr.Y.S.Shinde, A.P.P for the respondent No.1. Ms.Kirti Dabir for the respondent Nos.2 to 4. CORAM CORAM CORAM : A.S.OKA, J. : A.S.OKA, J. : A.S.OKA, J. DATE DATE DATE : 08th September 2008. : 08th September 2008. : 08th September 2008. P.C.: . Submissions of the learned counsel appearing for the parties were heard on the last date. Perused the reports submitted by the Officers of the Registry. 2. The facts leading to filing of this application are peculiar. The applicant is the first informant at whose instance F.I.R was registered. The offence complained are under various sections of the Indian Penal Code. An allegation is also made regarding commission of offence of forgery. The 2nd to 4th respondents are the accused. Criminal Application No.4252 of 2001 was filed by the 2nd and 3rd respondent for seeking anticipatory bail. The said application came up before this Court on 07th February 2002. On : 2 : that day this Court directed that the Deed of Assignment dated 10th October 1986 and letter dated 20th December 1999 as well as a xerox copy of affidavit of one Mr.Ramesh Chunilal Zariwala shall be sealed by the Additional Registrar of this Court and the said documents shall be sent to the handwriting expert. The said order records that the said three documents were tendered in the Court in presence of the concerned advocates. There is a further order passed by this Court on 19th December 2002 which records that report of the handwriting expert was received by this Court. The application was disposed of by the said order. It is the case of the applicant that the documents which were sent to the handwriting expert and report/opinion of the handwriting expert continued to be on the record of this Court. During the course of trial it was revealed that the original documents and the handwriting expert’s opinion were still on the record of this Court. Therefore, the public prosecutor made an application before the learned trial Judge with a prayer to request this Court to send the said documents. It is stated that the said application was allowed by the learned Magistrate. It is stated that the applicant applied to this Court for grant of certified copies of the said documents. By communication dated 30th June 2008, : 3 : Registrar (Judicial II) informed the advocate for the applicant that the said documents were not available in the Record and Proceeding of the High Court. Therefore, by filing this application, the applicant has invoked power of this Court under section 482 of the Code of Criminal Procedure, 1973 seeking a direction to the Registrar to search and trace out the documents and to initiate inquiry in that behalf. By order dated 18th July 2008 this Court called for the report of the Registrar (Judicial II). 3. On 07th August 2008 the learned Registrar (Judicial II) submitted a report stating that hectic search was taken by the concerned departments but the documents were not traced. He recorded that Record and Proceeding of Criminal Application No.4252 of 2001 was, however, traced out. The learned Registrar (Judicial II) sought time on the ground that he had issued directions to the concerned departments to make further efforts. Thereafter, on 28th August 2008 the learned Registrar (Judicial II) has submitted a detailed report. Alongwith the said report, he has submitted reports received by him from various branches including Criminal A, Criminal B, Nazir Department and Record section which record that after a hectic search the documents could : 4 : not be traced. He has noted in the report that after the final order was passed on Application No.4252 of 2001, the papers were received by Board department from the Court. As per usual practice the papers were sent to Criminal B branch for taking appropriate action. A search was also taken in Criminal B branch. However, documents could not be traced. The learned Registrar has also referred to the report submitted by the other departments. The Registrar has noted that the documents which were forwarded to the handwriting expert appeared to have been received by the office of this Court on 31st July 2002 alongwith opinion of the State Chief Examiner. 4. I have carefully perused the report of the Registrar (Judicial II). I have also perused the separate reports submitted by the different sections/branches of the office of this Court. From the reports I am satisfied that a diligent search was taken by the members of the staff. However, documents could not be located in the office of this Court though papers of the disposed of criminal application are available. The learned counsel appearing for the applicant submitted that the prosecution be permitted to lead secondary evidence of the Deed of Assignment dated 10th : 5 : October 1986 and the letter dated 20th December 1999 as well as report/opinion of the handwriting expert received by this office. 5. The learned counsel appearing for the 2nd to 4th respondents submitted that though the application for anticipatory bail was disposed of in the year 2002 and the documents were received by this Court in the year 2002, neither the applicant nor the State of Maharashtra have taken any steps to take back the documents. She, however, states on instructions that the 2nd to 4th respondents have no objection if secondary evidence in the form of xerox copies of Deed of Assignment dated 10th October 1986 and letter dated 20th December 1999 is permitted to be adduced by the prosecution. She, however, states that the said respondents have strong objection for permitting secondary evidence to be led of the opinion of the handwriting expert in as much as a copy of the said opinion/report was not made available to the 2nd to 4th respondents. 6. I have considered the submissions. I have perused the record of the Criminal Application No.4252 of 2001. As stated earlier, I am satisfied that a very diligent search was taken by the members of the staff to : 6 : locate the original documents. The original documents have not been found. The documents were received by the office of this Court from the handwriting expert. The application in which the documents were received was disposed of in December 2002. The documents received from the expert were kept on the record of the said application. Thereafter, the concerned branch where the disposed of matters are stored has been shifted from place to place. It is true that the State of Maharashtra or the applicant did not take steps in time for taking back the documents. However, the record proves that the aforesaid two documents and the opinion of the handwriting expert were very much on record of this Court and the same have been misplaced in the office of this Court. The reports deserve to be accepted. 7. The learned counsel appearing for the 2nd to 4th respondents have stated that the prosecution can lead secondary evidence of the two documents i.e the deed of assignment and the letter dated 20th December 1999 by producing xerox copies thereof. There is sufficient material on record to show that the report/opinion of the handwriting expert was received by the office of this Court and the same was very much on record. : 7 : Paragraph 4 of the final order dated 19th December 2002 passed in Criminal Application No.4252 of 2001 takes a note of the fact that report of the expert has been received by this Court. The reports submitted by the registry clearly establish that notwithstanding diligent search, the concerned documents including the report could not be traced. 8. Therefore, if the prosecution makes an application for seeking permission to lead secondary evidence of the report of handwriting expert, the said prayer will have to be allowed by the trial Court by allowing production of a true copy thereof as the original report was received by this Court and was misplaced. However, it is obvious that the prosecution will have to prove that the copy of the report is a true copy of the report of the handwriting expert which was submitted before this Court and which was on the record of this Court. 9. Subject to aforesaid directions, the application is disposed of. The reports of the registry are accepted. No further action is called for. The Registrar (Judicial II) will take appropriate steps for ensuring that henceforth the original documents are : 8 : properly preserved. (A.S.Oka,J)