ASHUTOSH J.SHASTRI,J. - (1.)The present Criminal Revision Application is filed by the original complainant under Sec. 397 read with Sec. 401 of the Code of Criminal Procedure challenging the legality and validity of the order dtd. 13/2/2019 passed by the learned 2nd Additional Senior Civil Judge, & Judicial Magistrate First Class, Mahuva, District : Bhavnagar below Exhibit-151 in Criminal Case No. 641 of 1996.
(2.)The case in brief is that the applicant " " original complainant had filed a complaint with Deputy Superintendent of Police Mahuva, District : Bhavnagar on 4/2/1994 for the offences punishable under Ss. 406, 420 of Indian Penal Code, against respondent no. 2 herein. In view of the Police report being filed that no offences were committed by respondent no. 2, the question was then decided by the learned Judicial Magistrate, First Class, Mahuva, District : Bhavnagar, who on 2/7/1996 was pleased to issue process against respondent no. 2 for the offences punishable under Sec. 420 of the Indian Penal Code and the charge came to be framed on 14/7/2008. The said framing of charge was challenged by respondent no. 2 by preferring Criminal Revision Application No. 26 of 2008 before the learned Sessions Court, Bhavnagar (Camp at Mahuva), which was dismissed on 9/2/2009. Thereafter, a petition for quashing also came to be submitted before this Court which also came to be rejected on 5/9/2014 being Criminal Misc. Application No. 9296 of 2009. The applicant learnt that respondent no. 2 had stated that the work of construction of the plot no. 38 which was allotted to the applicant in Muninagar Co-operative Housing Society Ltd., was complete, though substantial construction was left out. Respondent no. 2 also demanded extra payment though he had assured that no extra charge would be demanded from any member. Though the applicant had made full payment, but on account of respondent no. 2, a criminal complaint came to be filed, which was registered as Criminal Case No. 641 of 1996 which is presently pending in the court of learned 2nd Additional Civil Judge and Judicial Magistrate First Class, Muhava, District : Bhavnagar. In the said criminal case, documents were produced and during examination of the investigating officer as such, an application was moved by the present applicant " " original complainant, at Exhibit-151 that those referred documents be exhibited. The said application came to be rejected and in addition to it, an amount of Rs.10,000.00 was towards costs was imposed upon the applicant and it is this order which is made the subject matter of the present Criminal Revision Application under Sec. 397 read with Sec. 401 of the Code of Criminal Procedure.
(3.)In the present Criminal Revision Application on 3/4/2019, notice for final disposal came to be issued, but thereafter, on account of circumstances, from time to time, the matter got adjourned and ultimately, heard at length on 23/8/2021 and was put up for orders on 31/8/2021. Learned advocate Mr. Brijesh J. Trivedi appearing on behalf of the applicant has submitted that the order passed by the court below is nothing but reflecting a clear error in exercise in jurisdiction. While passing the impugned order, the learned Judge has unnecessarily weighed with the pendency of the proceedings of 1996 and has on the contrary, imposed costs upon the applicant and for giving such kind of application. This exercise of discretion is clearly irregular in nature and, therefore, this is a fit case in which revisional jurisdiction be exercised. Learned advocate Mr. Trivedi has submitted that it appears from the bare reading of the order that the learned Judge has mixed up two applications i.e. the present one at Exhibit-151 and Exhibit-119, which was filed under Sec. 173(8) of the Code of Criminal Procedure. Simply because Exhibit-119 application was rejected on 6/11/2017. it would not preclude the applicant from filing any other substantive application. The learned Judge has not considered this filing of application in the right spirit. In between an application at Exhibit-120 which is a list of documents in support of the application at Exhibit-119 is also taken into consideration as if the same would preclude the applicant from filing the present application below Exhibit-151. It has been submitted that Exhibit-119 which might have attained finality, but the relief contained therein is slightly different from the present one and the learned Judge has not properly construed the said application in its proper perspective. This application is filed for exhibiting the documents which are referred to by the investigating officer in deposition and by mere exhibiting of documents, the contents therein are not which are obviously assumed to be finalized and, therefore, by mere exhibition of documents, no prejudice is likely to be caused to either side, and the learned Judge ought not to have passed the impugned order simply on the ground that the documents are merely a photocopy of the original documents. The reasons assigned by the court below are not just and proper to sustain the ultimate conclusion arrived at in the impugned order. It has been further contended by learned advocate Mr. Trivedi that simply because the application might have been given at little delayed stage of five months, the same would not be a ground to discard the request made by the applicant, which is ultimately in the interest of justice. In view of this pandemic Covid-19 period, if some time is taken to present the application, the same may not be a ground for passing the impugned order and further no doubt, this criminal case is of the year 1996, but to dispose of the same by all means, or under pressure the work would on the contrary defeat the very object in delivering the justice and therefore, apparently the reasons which are assigned by the court below are not in consonance with the law propounded by catena of decisions and as such, the Court may kindly consider the request of the applicant.
3.1. Learned advocate Mr. Trivedi has submitted that application below Exhibit-119 is for the purpose of further investigation permitted under Sec. 173(8) of the Code of Criminal Procedure and as such, simply because the same is not considered the documents which have been relied upon during the examination can't be refused to be exhibited since the same have been referred to. Be that as it may, the order passed by the court below is not just and proper, reflects clear non application of mind and as such, deserves to be quashed.