Opposite Party v. For the
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 2306 of 2024 Kanhai Mahato @ Kanhaiy Mahto @ Kanhai Mahto, aged about 40 years, S/o Madan Mahato, R/o Virajpur, P.O. & P.S.- Madhuban, Dist.- Dhanbad ...... Petitioner The State of Jharkhand ….. Opposite Party Versus For the Petitioners : : For the State
Legal Reasoning
Mr. Shailesh Kr. Singh, Adv. Mr. Vishwanath Roy, Spl. PP P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY By the Court:- Heard the parties. 2. This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this court under Section 528 of BNSS with a prayer for quashing the order dated 26.06.2024 passed in Sessions Trial Case no. 354 of 2023 arising out of Barora P.S. Case no. 66 of 2022 corresponding to G.R. no. 112 of 2023 whereby and where under, the learned Additional Sessions Judge- VI, Dhanbad has rejected the application filed by the petitioner to call for Original Station Diary Entry / G.D. Entry between 09.11.2022 to 13.11.2022 from Kotshila Police Station within the district of Purulia in the State of West Bengal and the said Sessions Trial is at the stage of defence. 3. The defence of the accused persons, of the Sessions Trial Case no. 354 of 2023 who is the petitioner in this criminal miscellaneous petitioner is that he was arrested by police from the house of his father-in-law namely Gadadhar Gorain at village Chitmo Basti, P.S.- Kotshila, Dist.- Purulia but it is the version of the prosecution that he was arrested from Nawagarh More within the local limits of jurisdiction of Barora Police Station, under such circumstances, the petitioner prayed that the Original Station Diary Entry / G.D. Entry between 09.11.2022 to 13.11.2022 from Kotshila Police 1 Cr.M.P. No. 2306 of 2024 Station be called for but learned Additional Sessions Judge, has rejected the same. 4. Learned counsel for the petitioner by relying upon the judgment of the Hon’ble Supreme Court of India in the case of Kalyani Baskar vs. M.S. Sampornam reported in MANU /SC/0001/2007 paragraph No. 10 of which reads as under :- “10. XXXXX Section 243 (2) is clear that a Magistrate holding an inquiry under the Cr.P.C. in respect of an offence triable by him does not exceed his powers under Section 243(2) if, in the interest of justice, he directs to send the document for enabling the same to be compared by a hand-writing expert because even in adopting this course, the purpose is to enable the Magistrate to compare the disputed signature or writing with the admitted writing or signature of the accused and to reach his own conclusion with the assistance of the expert. The appellant is entitled to rebut the case of the respondent and if the document viz. the cheque on which the respondent has relied upon for initiating criminal proceedings against the appellant would furnish good material for rebutting that case, the Magistrate having declined to send the document for the examination and opinion of the hand-writing expert has deprived the appellant of an opportunity of rebutting it. The appellant cannot be convicted without an opportunity being given to her to present her evidence and if it is denied to her, there is no fair trial. 'Fair trial' includes fair and proper opportunities allowed by law to prove her innocence. Adducing evidence in support of the defence is a valuable right. Denial of that right means denial of fair trial. It is essential that rules of procedure designed to ensure justice should be scrupulously followed, and courts should be jealous in seeing that there is no breach of them. We have not been able to appreciate the view of the learned Judge of the High Court that the petitioner has filed application under Section 243 Cr.P.C. without naming any person as witness or anything to be summoned, which are to be sent for handwriting expert for examination. As noticed above, Section 243(2) Cr.P.C. refers to a stage when the prosecution closes its evidence after examining the witnesses and the accused has entered upon his defence. The appellant in this case requests for sending the cheque, in question, for the opinion of the hand- writing expert after the respondent has closed her evidence, the Magistrate should have granted such a request unless he thinks that the object of the appellant is vexation or delaying the criminal proceedings. In the circumstances, the order of the High Court impugned in this appeal upholding the order of the Magistrate is erroneous and not sustainable. “ (Emphasis supplied) and submits that because of the order passed by learned Additional Sessions Judge, VI, Dhanbad the appellant may be convicted without an opportunity being given to him to present evidence and such an order will amount to no fair trial taking place. It is next submitted that in para 81 of his deposition, the 2 Cr.M.P. No. 2306 of 2024 I.O., who has been examined as PW 12, has categorically admitted that he had gone to the Kotshila Police Station but he could not recall the date when he went there, hence, it is submitted that the prayer as made in this criminal miscellaneous petition be allowed. 5. Learned Spl. PP vehemently opposes the prayer of the petitioner and submits that this criminal miscellaneous petition being without any merit be dismissed. 6. Having heard the submissions made at the Bar and after going through the materials available in the record, it is pertinent to mention here that Section 233 (3) of the CrPC, which reads as under: If the accused applies for the issue of any process for compelling the attendance of any witness or the production of any document or thing, the Judge shall issue such process unless he considers, for reasons to be recorded, that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. (Emphasis supplied) envisages that if the accused applies for the issue of any process for compelling the attendance of any witness or the production of any document or thing, the Judge shall issue such process unless he considers, for reasons to be recorded, that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. 7. After going through the materials available on the record, this court finds that the three grounds on which, such a request of the petitioner could have been turned down i.e. the accused making such prayer for the purpose of vexation or delay or for defeating the ends of justice, has not been resorted to by the learned Additional Sessions Judge, VI, Dhanbad for rejecting the application of the petitioner for calling for the Original Station Diary Entry / G.D. Entry from Kotshila Police Station of the District of Pururlia in the State of West Bengal from 09.11.2022 to 13.11.2022. 8. Accordingly, the impugned order dated 26.06.2024 passed by learned Additional Sessions Judge- VI, Dhanbad in Sessions Trial Case no. 354 of 2023 arising out of Barora P.S. Case no. 66 of 2022 3 Cr.M.P. No. 2306 of 2024 corresponding to G.R. no. 112 of 2023 is not sustainable in law, hence, the same is quashed and set aside. 9. Learned Additional Sessions Judge- VI, Dhanbad is directed to pass an appropriate order in accordance with law for production of Station Diary or the extract of the same, from Kotshila Police Station of the District of Purulia in the State of West Bengal from 09.11.2022 to 13.11.2022, duly certified by the competent officer.
Decision
10. This criminal miscellaneous petition is disposed of accordingly. High Court of Jharkhand, Ranchi Dated, the 7th August, 2024 Smita /AFR (Anil Kumar Choudhary, J.) 4 Cr.M.P. No. 2306 of 2024