( 1 ) BY this petition which is filed under Article 227 of the Constitution of india and under Section 482 of Cr. P. C. , the petitioner is challenging the order passed by the Magistrate in C. C. No. 47/s/84 whereby the learned Magistrate was pleased to reject the application filed by the petitioner seeking direction from the Magistrate for the production of a document from the respondents Nos. 1 to 5 - original accused. Brief facts which are relevant for the purpose of deciding this petition are as under :

( 2 ) THE petitioner filed a criminal complaint in the Court of the Additional Chief metropolitan Magistrate against the respondents Nos. 1 to 5 for the alleged commission of offences punishable under Sections 347, 348, 386, 395, 506 (ii) read with sections 120-B, 34 and 114 of the IPC.

( 3 ) IT is alleged in the said complaint that the respondents forcibly took possession of the premises where the complainant was residing with her husband, after obtaining a letter signed by petitioner's husband by threatening him of dire consequences if he did not sign the said letter.

( 4 ) THE petitioner had filed an application under Section 145 of the Cr. P. C. for recovery of possession and ultimately in those proceedings, possession was directed to be handed over to the petitioner of the said premises.

( 5 ) THEREAFTER, in the criminal complaint which was filed by the petitioner in the Court of the Additional Chief Metropolitan Magistrate uring the recording of the evidence of the PW 5 Bhaskar, an application was filed by the petitioner dated 24th January, 1996 calling upon respondent No. 1 or any other respondent who are all accused of having committed the alleged offence to produce the original document which was alleged to be forcibly taken from her husband while he was in police custody. In the said application it was stated that the respondent No. 1 had relied upon the said document when he had filed an application for anticipatory bail in the Court of Sessions Judge at bombay. It was further the case of the petitioner that the original writing was dated 27th July, 1983, however, the said portion was removed by respondent No. 4 by tearing it off from the said document.

( 6 ) THE learned Magistrate perused the application filed by the petitioner and by its order dated 24th January, 1996 rejected the said application. Being aggrieved by the said order, the petitioner has preferred this writ petition under Article 227 of the Constitution of India.

SUBMISSION :

( 7 ) THE learned Senior Counsel appearing on behalf of the petitioner submitted that the learned Magistrate had rejected the application of the petitioner and had commented upon the said document which was not produced by the respondent. He submitted that the Magistrate ought" to have asked the respondent to produce the document as it was vital for proving the prosecution case against the respondents. The learned Senior Counsel invited my attention to the impugned order as also the order which was passed under the proceedings which were taken out under Section 145 of the Cr. P. C. by the petitioner. He also invited my attention to the order which is passed in revision by this Court in favour of the petitioner and to the observation made by this Court in the said order. He further invited my attention to the application for anticipatory bail which was filed by the respondent herein wherein the xerox copy of the document in question was annexed to the application. He submitted that this itself clearly proved that the document was in possession of the respondent No. 1 and he was duty bound to produce the same. He further submitted that if such direction had been given by the Magistrate, it would not have been hit by the provisions of the article 20 (3) of the Constitution of India. He invited my attention to the eleven Judge bench Judgment of the Supreme Court in the case of Kathi Kalu Oghad reported in air 1961 SC 1808. He submitted that in the said eleven Judge Bench Judgm

Click Here to Read the rest of this document