1 1397.11-wp IN THE HIGH COURT OF JUDICATURE AT BOMBAY. APPELLATE JURISDICTION. CRIMINAL WRIT PETITION NO. 1397 OF 2011 Harrish Bhatia. ... Petitioner. V/s. State of Maharashtra. ... Respondent. Prakash Naik for the petitioner. Ms.A.T.Jhaveri, APP for the State. Mrs.Kirti Dabir for the intervener. CORAM: B.R.GAVAI, J. DATED : 4th August 2011. P.C. : Rule. Rule is made returnable forthwith. Heard finally by consent of parties. 2. By way of this petition, the petitioner has challenged the order dated 26th October 2009 passed by the Additional Chief Metropolitan Magistrate, 37th Court, Esplanade at Mumbai whereby the learned Magistrate has rejected the application filed by the present petitioner for sending certain documents for the opinion of handwriting expert and the order passed by the revisional Court dated 2nd May 2011 thereby rejecting the revision application. 2 1397.11-wp 3. It appears that the members of the Bar of Dadar Court of which the petitioner is not a member had filed a complaint against certain police officers of Dadar Police Station alleging therein that the petitioner was illegally detained and arrested by the police. It appears that the present C.C.No.76/PS/2006 is filed against the present petitioner by Shri Satish Jadhav , who was, at the relevant time, the Police Officer of the Dadar Police Station alleging therein that the petitioner had obstructed him from performing his official duty and, as such, an F.I.R. for the offence punishable under section 353 of I.P.C. was registered against the present petitioner. The present proceeding arises out of the said criminal case i.e. C.C.No. 76/PS/2006. 4. Shri Naik, learned counsel appearing for the petitioner submits that the application in question was necessary since, according to the petitioner, P.W.-8- Mohan Kharade has either not written some of the contents of the concerned document or they were interpolated at the behest of some other police officer. It is further submitted that it is the case of the petitioner that complaint of the petitioner is prior in time of the F.I.R. Lodged by the Dadar Police Station. It is his further contention that the F.I.R. has been registered by interpolating the documents as a counter blast of the criminal complaint filed against the police officers of the Dadar Police Station. 5. Ms.Jhaveri, learned A.P.P. vehemently opposes this petition. She submits that P.W.8- Mohan Kharade in his cross-examination has stated that he has written all the documents. She further submits that so far as change of handwriting is concerned, P.W.8 has admitted that there is difference in handwriting but he has also given explanation that this was because he was suffering from some disease. Learned A.P.P. further submits that other independent witnesses have also narrated that it is P.W.8 who has scribed the documents in question and, therefore, the application of the petitioner was rightly rejected. 3 1397.11-wp 6. It appears to be the case of the petitioner that the original documents maintained in the police station are not in the handwriting of P.W. 8- Mohan Kharade or, in the alternative, that there is interpolation by the police officer in order to falsely implicate the present petitioner in the crime in question. It is a settled law that accused can raise alternate defence. The accused is also entitled to every opportunity so as to defend his case. If the documents in question are sent to the handwriting expert for comparison along with specimen handwriting of P.W.8- Mohan Kharade, it will assist the Court in eliciting the truth. In any case no prejudice would he caused to the State. The State should be primarily interested in seeing to it that justice is done. It is not the duty of the State that conviction is obtained in any event. In this view of the matter, I find that the learned Magistrate has erred in rejecting the said application. 7. It is informed that document at Exh.P-7 is already on the record of learned trial Court. Petition is, therefore, allowed in the following terms: 8. The learned Magistrate shall issue summons to the Senior Inspector of Bhoiwada Police Station calling for the original documents at Exhs.D-7, D-9 and P-10. Learned Magistrate is also directed to summon P.W. 8- Mohan Kharade to give samples of his handwriting. After receipt of the same, learned Magistrate shall call for the report of the handwriting expert for comparison of the version of the disputed documents along with specimen handwriting of P.W.8- Mohan Kharade. Report may be called for as expeditiously as possible. Rule is made absolute in terms of this order. (B.R.GAVAI, J.)