( 1 ) BEING aggrieved by the order passed by the learned Civil Judge and C. J. M. , Dharwad, in C. C. No. 2226/82 dt. 4-3-92 rejecting the applications filed by the petitioners herein under Section 311 and also Section 313, Cr. P. C. seeking permission to produce certain letters, said to have been written by the complainant and also to recall the complainant for cross-examination, the petitioner filed this petition under Section 482, Cr. P. C.

( 2 ) THE brief facts leading to these applications are that the respondent filed a complaint under Section 200, Cr. P. C. on the allegation that the respondent has made certain derogatory and false statements in the letter written to the Dist. and Sessions Judge, Dharwad alleging among other things that the complainant indulges in using his official position against the interest of this respondent and influencing them in the matters pending before the Court, etc. This letter was forwarded to the complainant by the Dist. Judge for his remarks. On the basis of the allegations contained in the letter, the complainant lodged a complaint before the learned Civil Judge and C. J. M. Dharwad for the alleged offence under Section 500, I. P. C. The said case was registered in C. C. No. 2226/82. In actual fact, the trial was concluded and the statement of the petitioner who is accused before the Court was recorded and the case stood posted for arguments. At that time, the petitioner filed two applications as stated above. The respondent filed objections to these applications and after hearing both the parties, the learned Court rejected the application on the ground that the records were not: produced from proper custody and therefore, the Court refused to receive the letter and also permission to recall PW-1 for further cross-examination. This order is questioned in this petition.

( 3 ) HEARD the learned counsel for parties and the learned counsel for the respondent also filed a written argument in detail. Perused the same.

( 4 ) FROM a perusal of the order, it is abundantly clear that the points raised by the Court below itself are incorrect. The points formulated by the Court for determination are: 1. Whether the documents sought to be produced under the application in question by the accused were from proper custody? 2. If point No. 1 is answered in the negative, whether the accused is entitled to produce those documents in support of his case? 3. What order?

( 5 ) IT is well established law that under Section 311, Cr. P. C. the Court is empowered to permit the parties to produce documents and also to recall, examine, cross-examine and re-examine witnesses if the documents produced are essential for the just decision of the case. Under the circumstances, the question ought to have been whether these documents are necessary for the just decision of the case and whether recalling of witnesses would be essential for the said purpose. Therefore, from the very nature of the points raised by the Court below, it is clear that it proceeded on the wrong assumption that unless the documents are produced from proper custody, the same cannot be received by Court. It is not a stage at which the Court has to decide as to whether the documents are admissible in evidence if not produced from proper custody. An opportunity should be given to the parties to explain as to how they came into possession of those documents at a belated stage. Such being the case, the only point that the Court has to decide is as to whether those documents and evidence are necessary for the just decision of the case. The learned Court below was persuaded to accept the argument of the complainant only on the ground that those letters were written to his uncle and those letters were stolen and in that connection a police complaint was lodged and some of the documents were seized from the custody of the accused persons. Even accepting for the sake of argument that these documents were stolen, it is for the accused to establish that thes

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