BHALCHANDRA G NAIK Vs. SURESH MELVANI

JUDGEMENT

(1.) THE petitioner is seeking to challenge the Order dated 13-7-1998 passed in Criminal Revision Application No. 29 of 1998 by the Sessions Judge at Panaji. The learned Sessions Judge has, by the impugned order, confirmed the Order dated 19-6-1998 passed in C. C. No. 3/92/c by the learned Judicial Magistrate, First Class, Panaji. By the said Order, the learned Magistrate had declined to direct the complainant/respondent No. 1 to furnish to the accused/petitioner a copy of the complaint to police lodged by the complainant in the Police Station at Panaji. According to the petitioner, although in case of private complaint there is no provision for furnishing copies of the documents on which the complainant wants to rely upon such copies are necessary for effective cross-examination of the complainant and his witnesses by or on behalf of the accused and great prejudice may result if copies of such documents are not furnished in advance to the accused and it may amount to denial of fair opportunity to the accused to meet the case against him.

(2.) BY the impugned Order, the learned Sessions Judge placing reliance upon the judgment of the Division Bench of this Court in the matter of (Balukishan A. Devidayal v. The State of Maharashtra), reported in 1975 Cri. L. J. 1891, has held that since the proceedings before the Trial Court are on account of private complaint field by the respondent No. 1 herein, considering the provisions contained in the Code of Criminal Procedure, 1973, the accused/petitioner is not entitled to insist for the copies of the documents on which the complainant wants to rely upon be furnished to the accused and the accused can very well inspect the documents when the same are produced by the complainant in the course of inquiry/trial.

(3.) AT the outset, Shri A. P. Lawande, learned Public Prosecutor appearing for respondent No. 2 has raised preliminary objection regarding the maintainability of the petition itself. The petitioner had filed criminal revision application before the learned Sessions Judge against the order of the trial Court by invoking powers under section 397 of the Code of Criminal Procedure, 1973. Once the petitioner has preferred criminal revision application in terms of provisions contained in section 397 of the Code of Criminal Procedure, the second revision application is barred in terms of section 397 (3) of the Code of Criminal Procedure. It is not disputed by the learned Public Prosecutor that even in such situation, the inherent powers of the High Court under section 482 of the Code of Criminal Procedure are not taken away and the High Court is certainly entitled in its supervisory jurisdiction to interfere with the orders passed by the courts below, but the same is possible only in cases of grave miscarriage of justice or abuse of process of Court or when the required statutory procedure is not complied with or there is any failure of justice as such or the order or sentence imposed by the Magistrate requires correction. In the instant case, the petitioner has not made out any such case warranting this Court to invoke its power under section 482 of the Code of Criminal Procedure and, therefore, the petition is to be rejected in limine. In support of his contention the learned Public Prosecutor sought to rely upon the judgment of the Apex Court in the matter of (Dharampal v. Smt. Ramshri), reported in 1993 Cri. L. J. 1049 : A. I. R. 1993 S. C. 1361. On the other and, Shri S. G. Dessai, the learned Senior Advocate appearing for the petitioner, submitted that considering the fact that the learned Sessions Judge has rejected the revision application, solely on the ground of the decision of the Division Bench in the matter of Balukishan A. Devidayal v. The State of Maharashtra (supra), without considering the facts of the case in hand, according to the learned advocate, there is clear case of miscarriage of justice and the interference of this Court is necessary to correct the improper and illegal order passed by both the courts below. Drawing my attention to para 5 of the complaint, the learned advocate submitted that there is clear reference to the complaint to the police filed by the complainant and the same complaint is sought to be produced in the course of evidence by him and it was in relation to that complaint that the petitioner had requested the trial Court to direct the respondent No. 1 to furnish copy of the same to the petitioner. According to the learned advocate, once the complainant refers to a document in the complaint, such document forms part of the complaint and, therefore, considering the provisions contained in section 204 (3) of the Code of Criminal Procedure, the accused/petitioner is entitled for a copy of such document as a matter of right. Even otherwise, according to the learned advocate, considering the fact that it is a criminal case and the accused is presumed to be innocent till he is proved to be guilty and in order to give fair and proper opportunity to the accused to meet the case against him, it is absolutely necessary for him to have copies of the documents on which the complainant seeks to rely upon.