- (1.) The accused-petitioner has filed this Criminal Misc.Petition under Section 482 Cr.P.C. against the order dated 18.7.2013 passed by the Metropolitan Magistrate No.17, Jaipur Metropolitan, Jaipur in Criminal Case No.66/2010 whereby learned trial Court dismissed the application dated 12.1.2010 filed by the petitioner with a prayer to take off from the record documents Ex.P1 to P9 filed by the respondent-complainant on 3.8.2009.
(2.) Brief relevant facts for the disposal of this petition are that a written complaint came to be filed by the respondent-complainant on 22.7.1999 against the accused-petitioner before the Chief Judicial Magistrate, Jaipur City, Jaipur for the offences under Sections 420 and 406 IPC and it was sent for investigation under Section 156 (3) Cr.P.C. to Police Station Manak Chowk, Jaipur and on that basis, FIR No.278/99 for the aforesaid offences was registered on 2.8.99 and after investigation charge-sheet was filed against the petitioner. Along with the charge-sheet, apart from other evidence, photostat copy of three documents as collected during investigation was also filed, but no original documents were filed . Cognizance for the aforesaid offences was taken by the trial Court on 2.11.1999 and vide order dated 3.5.2008 charge only for offence under Section 406 IPC was framed against the petitioner and trial commenced. During the course of trial, on 3.8.2009 some original documents were filed before the trial Court on behalf of the respondent-complainant and his examination-in-chief was recorded on 27.11.2009 and during its course, documents filed on 3.8.2009 and some other documents were exhibited and he was also partly cross-examined. The respondent-complainant was further cross-examined on behalf of the accused-petitioner on 12.1.2010, but it could not be concluded. Thereafter, on 12.1.2010 present application was filed with the averment that during the course of cross-examination of the complainant on perusal of record of the Court, it was found that counsel for the complainant without prior permission of the Court filed some documents on 3.8.2009 and during the course of examination-in-chief they were exhibited also. It was further averred that documents which have been exhibited as Ex.P1 to Ex. P9 were not collected during investigation and they were not filed alongwith the charge-sheet and, therefore, they be taken off from the record. Reply to the application was filed on behalf of the prosecution on 20.2.2010 and the learned trial Court after hearing both the parties vide impugned order dated 18.7.2013 dismissed the aforesaid application. Feeling aggrieved, the accused-petitioner is before this Court by way of this petition with a prayer to set aside the same.
(3.) In support of the petition, learned counsel for the petitioner raised the following grounds:- (1) Although, FIR was registered on the basis of a complaint filed by the respondent-complainant before the trial Court, but as after investigation charge-sheet was filed and cognizance was taken by the Court below under Section 190 (1) (b) Cr.P.C., the complainant-respondent had no authority to appear before the trial Court through his counsel and file original documents on 3.8.2009 without permission of the Court as his position in the case after filing of the charge-sheet was, at the most, of a prosecution witness. As per sub-section (2) of Section 301 Cr.P.C., a pleader on behalf of a private person may act, at the most, under the direction of the Assistant Public Prosecutor who is in charge of case and can not act independently. (2) Once charge-sheet is filed in a Court, additional evidence, oral or documentary, cannot be filed and only that evidence can be produced during trial on behalf of the prosecution which was submitted alongwith the charge-sheet. Otherwise also, even if in a case additional evidence, oral or documentary, is required to be filed on behalf of the prosecution, the same can be filed only by Public Prosecutor/Additional Public Prosecutor/Assistant Public Prosecutor and that too only with the prior permission of the Court, but in the instant case counsel for the complainant without any authority and permission of the trial Court produced original documents without furnishing copy of the same to the accused-petitioner or his counsel. (3) Although, investigating agency has an authority under Section 173 (8) Cr.P.C., to further investigate a case and to collect additional evidence, but in the present case no such investigation was undertaken with or without prior permission of the trial Court and, therefore, even prosecution was not entitled to produce additional evidence in the form of original documents before the trial Court. (4) Merely because during the course of examination-in-chief of the respondent-complainant some of the documents were exhibited without objection by the petitioner, he cannot be estopped to raise such objection. (5) In the facts and circumstances of the case provisions of Section 91 and 311 Cr.P.C. are not applicable in the present case.;