VASANT ARJUN RACHH Vs. NIRMALAL RAMNIKLAL SHAH

JUDGEMENT

(1.) Complainant-petitioner impugns the rejection of an application moved by him for taking on record what was described as additional evidence .

(2.) The petitioner and his wife are at loggerheads with respondents Nos. 1 and 2-hereinafter to be referred to as the accused . On 10-10-1982, the complainant lodged a written report at the Wagle Estate Police Station at Thane ascribing to accused the commission of offences punishable under various sections of the Penal Code including sections 454, 457, 380 and 341. The police registered an offence and after the requisite investigation lodged a charge-sheet in the Court of J.M.F.C. at Thane. After the charge-sheet had been lodged, so says the Roznama, a charge was framed on 18-10-1984 . No trace of the said charge was forth-coming and therefore on 8-6-1986, the Magistrate presiding over the Court re-framed a charge. According to this charge, the accused were called upon to face the accusation of having committed offences punishable under sections 454, 457, 380 and 341 read with 34 of the Indian Penal Code. In February 1987 and, this before the recording of evidence in the proper sense of the term had begun, complainant moved an application. This application gave the resume of what had taken place prior to the lodging of the report etc. etc. Complainant averred that there had been conversions between him and his wife on the one hand and the accused on the other. These conversions had a bearing upon the subject-matter of the prosecution. Unknown to the accused, his wife had secretly taped the conversations. The conversations had been properly recorded and the tapes had been securely preserved. The conversation on the tapes would throw great light upon the facts in issue and it was therefore necessary that the said tapes together with a transcription and translation thereof be taken on record. The prosecution was being conducted by the A.P.P. attached to the Court of the Magistrate. For this reason, the said A.P.P. along with the defence Counsel was called upon to give his response to the application of the complainant. The A.P.P. supported the application claiming that the evidence sought to be tendered was relevant. In so far as the Counsel for the accused was concerned, he objected. First, it was contended that complainants Advocate had nor light to intervene in the proceeding in the manner he had done. There was no provision in law under which the complainant could produce evidence oral or documentary after the charge-sheet had been lodged in a case being conducted by the regular machinery of the State. The learned Magistrate heard the parties and passed a somewhat lengthy order rejecting the application. To be brief, he was of the view that the application was untenable. The right course for the complainant was that he should have moved the Investigating Officer to collect the additional evidence in his possession. Next the conversations had been taped surreptitiously and by the complainant. For that reason, the tapes could not be taken on record. The application moved by the complainant did not gave the date, time and venue of the conversations allegedly recorded in the tapes. The manner in which the conversations had been taped violated the dictum of a Division Bench of this Court in the judgment reported in 79 Bombay Law Reporter at page 217. Lastly, the conversations related to a stage at which efforts were being made to amicably settle the matter. What was said at such a stage was not admissible. The reasoning and conclusion are assailed in the revision. Having heard Counsel for the parties and the Public Prosecutor, I am of the view that the Magistrate has erred and that the revision has to be allowed for the reasons given below.

(3.) Learned Counsel appearing for the petitioner submits that section 242 of the Code of Criminal Procedure, 1973 permitted the tendering of evidence which his client wanted to tender. This section to the extent relevant reads thus: -