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2009 DIGILAW 80 (CAL)

Fon Bob Cooper v. STATE OF WEST BENGAL

2009-02-09

ARUNABHA BASU

body2009
Judgment :- (1) The revisional application under Section 482 of the Code of Criminal Procedure is directed against the judgment and order dated 15th September, 2007 passed by the learned Additional Sessions Judge, Bongaon in connection with Criminal Appeal No. 1 of 2007, whereby and whereunder, the learned Sessions Judge dismissed the appeal preferred by the petitioners herein and affirmed the order of conviction and sentence passed by the learned Additional Chief Judicial Magistrate, Bongaon in connection with G.R. Case No. 1155 of 2005. (2) The petitioners herein are impleaded as accused in connection with the above-noted case. In the revisional application the petitioners took the point that the order of conviction and sentence passed by the learned trial Court and affirmed by the learned Court of appeal is based on insufficient evidence. There is no proof of forgery and during the course of prosecution, no evidence of any expert was at all recorded. The learned Court below also failed to take into account that the seized documents were not produced and the alleged forged documents were never compared by the learned Court below. It is further contended that no evidence could be collected from the place where the passports and visas, which are the subject matter of forgery, were issued. (3) Learned Advocate for the O.P. State submitted that in this case the High Court will be slow to upset the concurrent finding of both the Courts below. It is further contended that re-appreciation of evidence as sought to have been advanced by the petitioners herein cannot be permitted. In this connection, it may be pointed out that the power of this Court under section 401 of the Code of Criminai Procedure was considered by the Honble Supreme Court in the case of Dull Chand v. Delhi Adminstrtion reported in AIR 1975 SC 1960 . Three Judges of the Honble Apex Court held that the jurisdiction of the High Court in a criminal revision application is severely restricted and it cannot embark upon re-appreciation of evidence. (4) Similar view is expressed by the Honble Supreme Court in the case of State of Maharashtra v. Jagmohan Singh Kuldip Singh Anand and Ors. reported in 2004 Cr LJ 4254: (2005)1 C Cr LR (SC) 45. (4) Similar view is expressed by the Honble Supreme Court in the case of State of Maharashtra v. Jagmohan Singh Kuldip Singh Anand and Ors. reported in 2004 Cr LJ 4254: (2005)1 C Cr LR (SC) 45. The Honble Supreme Court while explaining the power of the High Court under Section 401 of the Code of Criminal Procedure observed as follows : "The Revisional Court is empowered to exercise all the powers conferred on the Appellate Court by virtue of the provisions contained in Section 401, Cr.P.C. Section 401, Cr.P.C. is a provision enabling the High Court to exercise all powers of Appellate Court, if necessary, in aid of power of superintendence or supervision as a part of the power of revision conferred on the High Court or Sessions Court. Section 397, Cr.P.C. confers power on the High Court or Sessions Court, as the case may be, for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed and as to the regularity of any proceeding of such inferior Court. It is for the above purpose, if necessary, the High Court or Sessions Court can exercise all appellate powers. Section 401, Cr.P.C. conferring powers of Appellate Court on the Revisional Court is with the above limited purpose. The provisions contained in Section 395 to Section 401, Cr.P.C. read together do not indicate that the revisional power of the High Court can be exercised as a second appellate power". (5) Keeping in view the guideline as mentioned above, the present revisional application is required to be considered. After going through the judgment passed by the learned trial Court and affirmed by the learned Court of appeal, I find that all the points as raised in the revisional application is already considered by the learned Court below. For example, non-production of passport and visa was agitated before the learned Court of appeal and the learned Court of appeal disagreed with the contention of the petitioners herein as it was found by the learned Court of appeal that the passports of the four appellants have been marked as material Ext. 1, 1/I, 1/II and 1/III respectively. The said finding was arrived after considering the evidence of P.W. 1. 1, 1/I, 1/II and 1/III respectively. The said finding was arrived after considering the evidence of P.W. 1. There is nothing to show that the finding arrived by the learned Court of appeal on the point of non-production of the passports suffers from any infirmity. I do not find any such recital in the revisional application. (6) With regard to the point about comparison of the documents by the Court, it may be pointed out that while Section 73 of the Indian Evidence Act, such course of action may be adopted by the Court but at the same time several judicial pronouncements of the Honble Supreme Court does not favour such comparison by the Court. In the case of State (Delhi Administration) v. Pali Ram reported in AIR 1979 SC 14 , the Honble Apex Court held that it is not advisable that a judge should take upon himself the task of comparing the admitted writing with the disputed one. The prudent course is to obtain opinion and assistance of an expert. In view of the decision of the Honble Supreme Court as referred to above, I do not find any illegality committed by the learned Courts below in assessing the evidence as produced by the prosecution. (7) The contention that the prosecution failed to produce any evidence of expert, it may be pointed out that the word "expert" means and includes a person having knowledge over the subject on which he is being examined before the Court. The learned Court below took into consideration the evidence of P.W. 1 and P.W. 6 in this matter. The trying Magistrate considered the evidence of P.W. 1 and P.W. 6 in which those witnesses stated that the visas produced by the petitioners herein were not glowing with the help of U.V. lamps. The learned Trial Court also took into consideration that the P.W. 1 was working in the job for a period of 21 years and he must have acquired sufficient knowledge during the course of his official duty. It is the categorical finding of the learned Court below, who in fact saw the witnesses deposed before him, that the evidence of P.W. 1 and P.W. 6 falls within the purview of expert opinion. It is the categorical finding of the learned Court below, who in fact saw the witnesses deposed before him, that the evidence of P.W. 1 and P.W. 6 falls within the purview of expert opinion. (8) On consideration of the entire matter, I do not find any illegality or impropriety committed by the learned trial Court and the learned Court of appeal, which justifies any interference from this Court. It is well-settled that the High Court in exercise of its power of revision would be slow to interfere with the concurrent finding of both the learned Courts below. Unless it could be shown that the learned Court below accepted inadmissible evidence or failed to consider admissible evidence or otherwise committed any illegality in deciding the issue, then the revisional Court shall refrain itself from interfering with such concurrent finding simply on the ground that another view over the matter is possible. (9) This being the position, I do not find any merit in the revisional application and the same stands disposed of accprdingly. (10) There will be no order as to costs. (11) Criminal Section is directed to forward a copy of the order to the learned Court below along with the lower Court records. (12) Criminal Section is also directed to supply urgent photostat copy of the order to the learned Advocate for the petitioners as and when applied for.