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Gujarat High Court · body

2011 DIGILAW 670 (GUJ)

Kishorbhai Gandubhai Pethani v. State of Gujarat

2011-09-12

M.D.SHAH

body2011
JUDGMENT : M.D. Shah, J. Following prayers have been made in Cri. Misc. Appln. No. 3213 of 2011: “(A) Be pleased to allow this application; (B) Be pleased to quash and set aside the complaint lodged before Shahibaug Police Station being ICR No.180/2010 dated 5.7.2010 for the offences punishable under sections 463, 465,468, 471 and 114 of the Indian Penal Code, more particularly at Annexure-A to this application; (C) Pending admission, hearing and final disposal of this application, be pleased to stay further investigation of the complaint lodged before Shahibaug Police Station being ICR No.180/2010 dated 5.7.2010 for the offences punishable under sections 463, 465,468, 471 and 114 of the Indian Penal Code, more particularly at Annxure-A to this application; (D) Be pleased to grant any other relief, which deems fit and proper in the interest of justice.” 2. Cri. Misc. Appln. No.6406 of 2011 in Cri.Misc.Application No.3213 of 2011 has been filed by the original complainant for vacating ex-parte stay granted vide order dated 11-3-2011 passed in Cri.Misc.Application No.3213 of 2011 by this Court. 3. Present applicant is original accused of Sessions Case No.175 of 2007 in which charge was framed against the accused persons for the offences punishable under Sections 307, 323, 324, 506(2), 294A of the IP Code and thereafter trial had commenced. During the trial of the said case, P.W.No.3, Dr. Ghanshyam Chunilal Patel, was examined at Ex.104. During the cross-examination, at the instance of accused, said witness has produced certain medical papers which were exhibited as Ex.106. It has come out from his evidence that those medical papers were tampered with. During the trial of the said case, P.W.No.3, Dr. Ghanshyam Chunilal Patel, was examined at Ex.104. During the cross-examination, at the instance of accused, said witness has produced certain medical papers which were exhibited as Ex.106. It has come out from his evidence that those medical papers were tampered with. Details of the same are as under: Page No. In the petition Compare with Page No Remarks 68 & 76 153 Apparent darkening of certain portions which implicate accused-petitioner 69 & 77 154 79 155 Fully changed-compare handwriting 80 156 Alleged H/o changed in replaced page 86 164 Reason for injury changed 89 167 At bottom: word “Assaulted” darkened so it cannot be read 90 168 Alleged H/o changed 91 169 words (stitch) “wounds” replaced by (stitches) “noted on” 92 170 Apparent addition of note dated 27-9-03 103 181 Doctor's chart-replaced 107 185 Page replaced to add words “by fall down.” It is also stated on oath by this witness before the Court that he received these papers from MLC's custody in the Civil Hospital but could not say as to who tampered with these documents. On a question to this witness by the Court as to in whose custody these papers were lying, he answered that these papers were lying in the custody of MLC's office and if these papers are handed over to private persons, it is an offence. On the basis of this evidence, the present respondent No.2-original complainant lodged complaint before Shahibaug Police Station for the offences punishable under Sections 463, 465, 468, 471 and 114 of IPC and offence was registered being I.C.R.No.180 of 2010. The Investigating Officer submitted an application before the Court to hand over the said alleged tampered documents for investigation and to send them to handwriting expert for getting opinion. Said application was allowed by the trial court. Thereupon, Cri.Misc.Application No.3213 of 2011 has filed for quashing of the complaint wherein interim relief was granted staying the proceedings while Cri. Misc.Application No.6406 of 2011 in Cri.Misc.Application No.3213 of 2011 has been filed to vacate the stay granted in Cri.Misc.Appln.No.3213 of 2011. 4. Heard learned advocate, Mr. D.P. Kinariwala with Mr. Rakesh B.Sharma for the applicant-original accused, learned APP, Mr. A.J. Desai for the respondent-State and learned advocate, Mr. Nirav C.Thakker for the original complainant. 5. It is vehemently argued by learned advocate, Mr. 4. Heard learned advocate, Mr. D.P. Kinariwala with Mr. Rakesh B.Sharma for the applicant-original accused, learned APP, Mr. A.J. Desai for the respondent-State and learned advocate, Mr. Nirav C.Thakker for the original complainant. 5. It is vehemently argued by learned advocate, Mr. Kinariwala, that these documents are produced before the Court and, therefore, procedure prescribed under section 304 of Cr.P.C. is required to be followed and if Court comes to the conclusion that these papers were tampered with, then, as per the direction of the Court, authorised person can lodge the complaint and it attracts bar under Section 195 of Cr.P.C. and, therefore, police has no power to take cognisance and hence, registration of the complaint as well as investigation carried out by the Investigating Officer on the basis of such complaint is unsustainable and it is therefore requested that the complaint in question may be quashed and set aside. He has placed reliance on the following judgments: (i) Iqbal Singh Marwah and another v. Meenakshi Marwah and another reported in AIR 2005 Supreme Court p.2119; and (ii) C. Muniappan and Ors. v. State of T.N. With D.K. Rajendran and Ors. etc. etc. v. State of T.N. Reported in AIR Supreme Court p.3718. 6. It is submitted by learned advocate, Mr. Nirav C.Thakker for the complainant that before these documents were produced in Court by the witness, they were tampered with when it was with MLC's office by someone and, therefore, it could not be said that documents were tampered with while producing in the Court. In view of this, question does not arise for applicability of Section 195 of Cr.P.C. 7. Learned APP submitted that before production of these documents, they were tampered with and, therefore, he submitted that there is no bar for lodging the complaint by the complainant for the above referred alleged offence and Section 195 is not attracted. 8. This Court has gone through the evidence of Dr. Ghanshyam Chunilal Patel. During the cross-examination of this witness by the advocate of the accused, these documents were produced at the instance of the advocate of the accused and in uncertain terms it is stated on oath by this witness that he does not know how these documents were tampered with. This Court has gone through the evidence of Dr. Ghanshyam Chunilal Patel. During the cross-examination of this witness by the advocate of the accused, these documents were produced at the instance of the advocate of the accused and in uncertain terms it is stated on oath by this witness that he does not know how these documents were tampered with. This clearly shows that before these documents were produced in Court, they were tampered with when they were lying in MLC's office and, therefore, there is no bar in lodging the complaint for the offences as referred above and hence, question does not arise to follow procedure prescribed under Section 304 of Cr.P.C. and, therefore, Section 195 of Cr.P.C. will not be attracted. Section 195 of Cr.P.C. more particularly Section 195(1)(b)(ii) reads as under: “195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence.--(1) No Court shall take cognisance-- (a) (i) .... (ii) .... (iii) ... (b) (i) .... (ii) of any offence described in Section 463, or punishable under Section 471, Section 475 or Section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or “ It is clear that the documents were tampered with when they were in the office of MLC and these tampered documents were produced before the Court by the witness. In view of the fact that the documents produced by the witness were tampered while they were lying in the record of MLC, Section 195 of Cr.P.C. will not be attracted. As far as decisions relied on by the learned advocate for the applicant is concerned, there cannot be any dispute with regard to the ratio laid down by the Hon'ble Apex Court but facts of the case are totally different from the facts of the cited decisions and hence, the applicant would not be entitled to the benefit of those decisions. Hence, in the opinion of this Court, petition for quashing cannot be entertained and is required to be dismissed. 9. Cri. Misc. Appln.No.3213 of 2010 is dismissed. Rule is discharged. Ad-interim relief stands vacated. 10. Hence, in the opinion of this Court, petition for quashing cannot be entertained and is required to be dismissed. 9. Cri. Misc. Appln.No.3213 of 2010 is dismissed. Rule is discharged. Ad-interim relief stands vacated. 10. In view of the dismissal of main Cri.Misc.Appln.No.3213 of 2010 and vacating of interim relief, Cri.Misc.Appln.No.6406 of 2011 does not survive and is disposed of accordingly. Further Order: After pronouncement of this judgment, learned advocate for the petitioner, Mr.R.B.Sharma, requested for continuation of ad-interim relief granted earlier by this Court for some period. However, looking to the facts and circumstances, request is rejected. Petition dismissed.