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2021 DIGILAW 299 (BOM)

Rajesh Rameshwar Hurkat v. State of Maharashtra

2021-02-09

ROHIT B.DEO

body2021
JUDGMENT 1. The petitioner is facing trial in connection with Crime 55/99 registered with Ansing Police Station, District-Washim for offences punishable under Sections 406, 420, 468 and 471 of the Indian Penal Code. 2. The crime is registered on the basis of report dated 27-8-1999 lodged by Mr. Ashok Harkut, respondent 2 herein, who shall be referred to as the complainant. 3. The gist of the report is that the complainant availed loan of Rs.5,000/- from the petitioner, who shall be hereinafter referred to as the accused, and as security pledged his motorcycle. The complainant approached the accused and offered to return the loan amount. The accused, however, avoided to return the motorcycle on one pretext or the other and enquiries with the Regional Transport Office revealed that the motorcycle was sold to one Mr. Bhaskar Borkar by forging the signature of the complainant on the transfer documents. 4. Culmination of investigation resulted in the submission of the final report. The trial Court framed charge under Sections 406, 420, 468 and 471 of the Indian Penal Code. The evidence commenced and as many as seven witnesses are examined. 5. The complainant preferred an application Exhibit 34 seeking a direction to the accused to give the handwriting specimen and to send the same to the Handwriting Expert for fresh examination. 6. The accused opposed the application Exhibit 34 preferred by the complainant pointing out that the Assistant State Examiner of the Documents to whom the specimen of the handwriting collected during investigation, has given a report and that the Expert did attend the Court for recording of evidence on 04-12-2013 and, therefore, the prayer to have a fresh examination of the handwriting specimen is not tenable. The accused specifically contended that the application preferred by the complainant was not tenable. 7. The learned Magistrate partly allowed Exhibit 34 vide order dated 30-4-2014 and the operative part of the order reads thus : ....[VERNACULAR TEXT OMMITED].... 8. The complainant assailed the order of the learned Magistrate in Criminal Revision 36/2014, which is dismissed vide order dated 10-7-2018. 9. The complainant is invoking the extra ordinary jurisdiction under Articles 226 and 227 of the Constitution of India in assailing the orders impugned. 10. Few facts, which are discernible from record, may now be noted. 11. 8. The complainant assailed the order of the learned Magistrate in Criminal Revision 36/2014, which is dismissed vide order dated 10-7-2018. 9. The complainant is invoking the extra ordinary jurisdiction under Articles 226 and 227 of the Constitution of India in assailing the orders impugned. 10. Few facts, which are discernible from record, may now be noted. 11. It is irrefutable that during the course of investigation, the Investigating Officer collected as many as thirty-six specimens of the handwriting of the accused. The specimens of the handwriting of the accused and the disputed signatures appearing on the transfer documents were forwarded to the Handwriting Expert, who submitted report dated 20-7-2013. It is further discernible that the evidence of the Handwriting Expert was not recorded although he was present in the Court. The learned Magistrate observes that the Investigating Officer did collect sufficient specimen signatures. However, the learned Magistrate further holds that it would be necessary to forward the thumb impressions of the accused collected during the investigation to the Handwriting Expert for comparison with the thumb impressions appearing on the transfer documents. It is further held that the signature appearing on the registration certificate and the signatures appearing on the transfer documents shall have to be compared by the Handwriting Expert. It is further irrefutable that application Exhibit 34 was treated by the learned Magistrate and the revisional Court as an application preferred by the complainant, and justifiably so. It does appear that the left bottom corner of the application bears the signature of the A.P .. In the absence of any material to suggest that there was any independent application of mind by the learned A.P. or that the learned A.P. too was of the opinion that it would be necessary to submit the specimen of the signatures and the thumb impressions to the Handwriting Expert for fresh examination, the application Exhibit 34 would be an application moved by the complainant, and the Courts below have rightly proceeded on such premise. 12. The question which arises for consideration is, whether application Exhibit 34 could have been entertained at all at the instance of the complainant. In my considered view, the answer must be in the negative. 13. The learned Counsel Mr. Amit Kukday would strenuously urge that the direction impugned is in essence and for all purposes a direction to re-investigate. Mr. The question which arises for consideration is, whether application Exhibit 34 could have been entertained at all at the instance of the complainant. In my considered view, the answer must be in the negative. 13. The learned Counsel Mr. Amit Kukday would strenuously urge that the direction impugned is in essence and for all purposes a direction to re-investigate. Mr. Amit Kukday would submit that the Handwriting Expert's report is on record. Mr. Amit Kukday submits that without even examining the Handwriting Expert, the learned Magistrate could not have issued the direction to send additional specimens of handwriting and the thumb impressions to the said Expert for fresh report. It would not be necessary to make any decisive observation on the submission that the direction in essence is a direction to re-investigate or conduct further investigation. In my considered view, since it would not be permissible for the learned Magistrate to entertain the application Exhibit 34 at the instance of the complainant, the direction impugned is rendered unsustainable in law. 14. It would be apposite to refer to Sections 301 and 302 of the Code of Criminal Procedure ("Code" for short), which read thus : "301. Appearance by Public Prosecutors - (1) The Public Prosecutor or Assistant Public Prosecutor in charge of a case may appear and plead without any written authority before any Court in which that case is under inquiry, trial or appeal. (2) If in any such case any private person instructs a pleader to prosecute any person in any Court, the Public Prosecutor or Assistant Public Prosecutor in charge of the case shall conduct the prosecution, and the pleader so instructed shall act therein under the directions of the Public Prosecutor or Assistant Public Prosecutor, and may, with the permission of the Court, submit written arguments after the evidence is closed in the case. 302. 302. Permission to conduct prosecution (1) Any Magistrate inquiring into or trying a case may permit the prosecution to be conducted by any person, other than a police officer below the rank of Inspector; but no person, other than the Advocate- General or Government Advocate or a Public Prosecutor or Assistant Public Prosecutor, shall be entitled to do so without such permission: Provided that no police officer shall be permitted to conduct the prosecution if he has taken part in the investigation into the offence with respect to which the accused is being prosecuted. (2) Any person conducting the prosecution may do so personally or by a pleader." 15. It is irrefutable that Section 302 of the Code, does not come into play since the complainant did not seek permission to conduct the prosecution. Section 302 of the Code is exclusively applicable to a magisterial trial, while Section 301 of the Code is applicable to magisterial as well as sessions trials. In the present matter, the prosecution is being conducted by the Public Prosecutor and irrefutably the complainant has not even applied for permission to conduct the prosecution. The tenability of the application Exhibit 34 will have to be tested on the touchstone of Section 301 of the Code alone. 16. It is well settled, and an illustrative reference may be made to the decision of the Supreme Court in Sandeep Kumar Bafna v. State of Maharashtra and Another, (2014) 16 SCC 723 that there is no vested right granted to a complainant or informant or aggrieved party to directly conduct a prosecution. While the Magistrate is statutorily empowered under Section 302 of the Code to permit any person, other than a police officer below the rank of Inspector, to conduct the prosecution, such power can be exercised only if an application is moved by the complainant or the informant or the aggrieved person under the said provision. If there is no permission granted under Section 302 of the Code to conduct the prosecution, even a magisterial trial would be governed by Section 301 of the Code. The right of the complainant of participation in the proceedings is extremely limited. A complainant may conceivably be heard at a critical juncture of the trial. However, it is the Public Prosecutor who is obligated to remain in control of the prosecution at all times. 17. The right of the complainant of participation in the proceedings is extremely limited. A complainant may conceivably be heard at a critical juncture of the trial. However, it is the Public Prosecutor who is obligated to remain in control of the prosecution at all times. 17. Considering the restricted right of the complainant under Section 301 of the Code, the learned Magistrate clearly erred in entertaining the application Exhibit 34 at his instance, and the orders impugned deserve to be, and are accordingly, quashed. 18. It is made clear that no opinion is expressed on the merits of the application Exhibit 34. If the Public Prosecutor makes a similar request, as made by the complainant, the same shall be considered on its own merits and all contentions raised in this petition, by the accused and the complainant, are kept expressly open. 19. Rule is made absolute in the afore-stated terms.