30-crwp1426-2022.doc

AGK

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

WRIT PETITION NO.1426 OF 2022

Gopal Bujappa Sagar & Anr.

… Petitioners

V/s.

The Central Bureau of Investigation

& Anr.

… Respondents

Mr. Prasanna Shahane i/b y Mr. Milind Deshmukh for

the petitioners.

Mr. H.S. Venegaonkar with Mr. Bharat Mirchandani for

respondent no.1/CBI.

Mr. R.M. Pethe, APP for respondent no.2/State.

CORAM :AMIT BORKAR, J.

DATED

:DECEMBER 8, 2022

P.C.:

1.

The petitioner/original accused is challenging order dated

23^rd February 2022 passed by the learned Special Judge (CBI),

Satara below Exhibit 47 in Special Case No.2 of 2016 permitting

the prosecution to produce documents in the form of

acknowledgment receipt of letter dated 8^th December 2015, its

photocopy and original letter received by the second complainant

addressed by the accused.

2.

The petitioner has been charged with offence punishable

under section 7 of the Prevention of Corruption Act, 1988. The

1

ATUL

GANESH

KULKARNI

Digitally

signed by

ATUL

GANESH

KULKARNI

Date:

2022.12.09

10:39:38

+0530

30-crwp1426-2022.doc

prosecution examined two (2) witnesses and the cross-

examination was also complete and thereafter the prosecution

filed an application to place on record the documents. The said

application was opposed by the petitioner. The learned Special

Judge by the impugned order allowed the application by granting

liberty to the petitioner to cross-examine the witness in respect of

the documents produced.

3.

Learned advocate for the petitioner submitted that except

section 173(8) of the Criminal Procedure Code, 1973, there is no

provision in the Criminal Procedure Code to enable the

prosecution to file such documents. According to him, there was

delay in producing such documents as the documents have been

produced after six (6) years.

4.

Per contra, Mr. Venegaonkar, learned special advocate for the

CBI placed reliance on an unreported judgment of this Court in

Criminal Writ Petition No.4712 of 2014 (Niwas Keshav Raut v.

The State of Maharashtra) decided on 28^th July 2015. He

submitted that this Court interpreting section 294 of the Criminal

Procedure Code permitted the course adopted by the prosecution

and, therefore, there is no merit in the petition.

5.

Having considered the submissions on both sides, it appears

that the impugned order protects prejudice, if any caused to the

petitioner by granting liberty to the petitioner to cross-examine the

witness in respect of the documents produced.

6.

In so far as power of the Court to allow such production is

concerned, learned Single Judge of this Court in the case of

2

30-crwp1426-2022.doc

Niwas Keshav Raut (supra) has observed in paragraph 11 thus:

“11.The significant aspect of Section 294 Cr.P.C., one must

note, is that it no where places any embargo upon the

prosecution or accused to file a document at a stage

subsequent to filing of the charge-sheet. It only says that if

any document is sought to be produced before the Court, it

should be included in the list of the documents and then the

other side should be called upon to either admit or deny the

genuineness of the document. It means by necessary

implication that a document can be filed subsequent to filing

of charge-sheet subject to following the procedure prescribed

in Section 294. Then, it is not necessary for the accused, who

is called upon to admit or deny the document, to choose

either of these options and he may simply keep silence in

respect of the document which may as well be an expression

of his fundamental right under Article 20(3) of the

Constitution of India which says that no person accused of

any offence shall be compelled to be a witness against

himself. In case the accused chooses to deny the document or

just remains silent in that regard, the document cannot be

admitted in evidence and it would be required to be proved

in accordance with law, having regard to the right of th