Kishorbhai vs State on 12 September, 2011 THE HIGH COURT OF GUJARAT AT AHMEDABAD
Kishorbhai vs State on 12 September, 2011
HONOURABLE MR.JUSTICE MD SHAH, JUDGMENT in
CR.MA/3213/2011
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
held as below
.....
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 Sec.195 of Cr.P.C.
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 Sec.195 is not attracted.
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 Sec.304 of Cr.P.C. and, therefore, Sec.195 of Cr.P.C. will not be attracted. Sec.195 of Cr.P.C. more particularly Sec.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 cognizance--
(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, Sec.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
Further in ,
KISHORBHAI GANDUBHAI PETHANI....Appellant(s)V/SSTATE OF GUJARAT
R/CR.A/1117/2011
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO.
1117 of 2011
HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
held as below
The brief facts of the case are that a complaint bearing I-C.R.No.271/2003 was lodged before Madhavpura Police Station, Ahmedabad City, by the present respondent No.2 against the appellant for offences punishable under Sections 323, 324, 294A, 506(2) and 114 of the Indian Penal Code, read with Section 135(1) of the Bombay Police Act. An application was made by the Police Sub Inspector, Madhavpura Police Station, for adding Section 307 of the Indian Penal Code. After investigation, the Chargesheet was filed and the case was committed to the Sessions Court and registered as Sessions Case No.175 of 2007. During the hearing of the case, the prosecution examined Dr.Ghanshyam Chunilal Patel as PW-3 at Ex.104. This witness stated that he is the Chief Medical Officer (CMO) who had given treatment to respondent No.2 in the Civil Hospital, Ahmedabad. A copy of the injury certificate was produced by the CMO at Ex.105. During cross-examination, this witness produced all the original papers at Ex.106. The said witness was also questioned by the Court regarding the custody of the case papers. Respondent No.2, original complainant, moved an application at Ex.110, requesting the Sessions Court to hold an inquiry regarding tampering of the medical record and to call for the police record. Thereafter, respondent No.2 filed a complaint before Shahibaug Police Station, Ahmedabad, being I-C.R. No.180 of 2010, on 05.07.2010, against the appellant and his wife (co-accused) for offences punishable under Sections 463, 465, 468, 471 and 114 of the Indian Penal Code. The appellant approached this Court under Section 482 of the Code of Criminal Procedure, by filing Criminal Miscellaneous Application No.3213 of 2011, praying that this complaint be quashed on the ground of the bar mentioned in Section 195(1)(b)(ii) of the Code of Criminal Procedure. This Court finally disposed of the above mentioned application vide common oral judgment dated 12.09.2011, in the following terms.
8. ...... In view of the fact that the documents produced by the witness were tampered while they were lying in the record of MLC, Sec.195 of Cr.P.C. will not be attracted......
A copy of the judgment and order dated 12.09.2011, passed in Criminal Miscellaneous Application No.3213 of 2011 with Criminal Miscellaneous Application No.6406 of 2011, has been submitted by Mr.Yash Joshi, learned advocate for Mr.Nirav C.Thakkar, learned advocate for respondent No.2, and is taken on the record of the case.
It is not disputed by learned counsel for the respective parties that the observations made by this Court in judgment dated 12.09.2011, passed in Criminal Miscellaneous Application No.3213 of 2011 with Criminal Miscellaneous Application No.6406 of 2011, would be applicable to the facts and circumstances of the present case.
In this view of the matter, and as the observations made in judgment dated 12.09.2011 would cover the legal question arising in the present appeal, the appeal is dismissed at the threshold.
(SMT. ABHILASHA KUMARI, J.)