Dr. Shahid Rizwan Khan vs Dr. Masroor Div. & Anr.

Rule. Rule made returnable forthwith. Heard finally with the consent of the parties.

The petitioner challenging the order dated 29.10.2025 passed by the learned District and Additional Sessions Judge-1, Nagpur in Criminal Revision Application No. 99 of 2019, thereby dismissing the revision filed by the accused herein challenging the order dated 01.02.2019 passed by the learned trial Court, thereby allowing the application filed by the complainant below Exhibit 90 in Regular Criminal Case No. 1586 of 2009.

Shri Sambre, learned counsel for the petitioner submits that the perusal of the order dated 01.02.2019, would show that there is no satisfaction recorded by the trial Court that such application and the documents referred to therein, would be relevant and necessary for proper adjudication of the criminal case. The learned trial Court ought not to have entertained such an application on behalf of the complainant. No further investigation was allowed to be undertaken in pursuance to any order under Section 173(8) of the Code of Criminal Procedure (in short hereinafter referred as ‘Cr.P.C’). The application was filed by the complainant after the trial has already commenced and the evidence of one of the witness was also recorded by the trial Court and the cross-examination was also conducted by the defence, the impugned order has caused serious prejudice to the accused and would cause miscarriage of justice. Hence, the erroneous order dated 01.02.2019 calls for interference of this Court. Challenging the said order dated 01.02.2019, the accused persons have filed a revision, which came to be registered criminal revision application no. 99 of 2019 before the learned District Judge, Nagpur. However, the learned District Judge-1 had also ignored the settled law that such application could not have been moved by the complainant particularly after the trial is already commenced and the evidence of one of the witnesses have already been recorded, and dismissed the revision application filed by the accused person. Impugned order passed by the lower Courts call for interference of this Court, as the same has resulted miscarriage of justice, thereby causing prejudice to the rights of the accused allowing the complainant to fill up the lacunae in the investigation conducted by the prosecution. Shri Sambre, learned counsel for the petitioner further relied upon the judgment of the Single Bench of this Court in the case of Bharat alias Bhomaram Choudhary Vs. State, the Police Inspector, Fatorda Police Station, Fatorda, Goa and another in Criminal Writ Petition No. 968 of 2024 (filing) dated 20.12.2024, wherein this Court had deprecated practice of allowing such application after the trial has commenced particularly at the behest of the complainant. In that case, the application was moved through the Public Prosecutor even then this Court has disapproved the filing of such application at the behest of the complainant by holding that if such application is allowed after the commencement of the trial, would result in the miscarriage of justice and would cause the serious prejudice to the accused, who had already opened his defence.

Shri Sambre, learned counsel therefore submits that both the lower Courts have failed to consider the settled law that such an application at the particularly behest of the complainant by relying upon several such documents, was not maintainable and hence the impugned orders are liable to be quashed and set aside.

As against this, Ms. Moushumi P. Mohanto, appearing on the respondent no.1/complainant submits that the trial Court has taken into consideration the application filed by the respondent no.1 relying upon certain documents was necessary for proper adjudication of the trial inasmuch as the allegations are of the cruelty and harassment punishable under Sections 498-A of Indian Penal Code, on account of non fulfillment of the demand of dowry. The documents which are relied upon by the complainant which shows that certain ornaments was purchased and list of articles were given at the time of marriage in pursuance to the demand of dowry by the accused person. The learned trial Court has therefore applied its mind and after granting opportunity of hearing to the accused, has rightly allowed the application permitting the complainant to bring on record the said documents. The learned revisional Court has also found that such an application at the behest of the private advocate, is not prohibited and as such dismissed the revision filed by the accused. The application was allowed considering the documents to be necessary and relevant for proper adjudication of the criminal case and particularly by recording that no prejudice would be caused to the accused, as the accused has a right of cross-examination and putting up his defence on such documents. Ms. Moushumi P. Mohanto, therefore submits that the impugned orders are just and proper and hence liable to be maintained and does not call for any interference of this Court under this writ jurisdiction.

I have gone through the order dated 29.10.2025 and 01.02.2019. The perusal of the orders would show that the application filed below Exhibit 90 was submitted by the complainant at a belated stage, when the evidence of one of the witnesses, namely, the father of the girl, had already commenced. The record shows that said witness was also cross-examined by the accused person. Thus, it shows that accused has already open up their defence. The application filed belatedly that too at the behest of the complainant was entertained and allowed by the learned Judicial Magistrate First Class, Nagpur, without giving any special reasons and exceptional grounds for allowing of such application. The investigation was already completed and charge-sheet was filed and necessary documents were already brought on record to prove the charge. Merely observing that such documents are relevant to the matter would not be sufficient enough to entertain such an application after the commencement of the trial, particularly when the application has been preferred at the instance of the complainant. In my opinion, therefore, the learned Trial Court committed an error in entertaining such an application after the commencement of the trial, particularly at the behest of the complainant, when one witness had already been examined and cross-examined by the accused, thereby opening up their defence.

The Single Bench of this Court in the case of Bharat alias Bhomaram Choudhary Vs. State, the Police Inspector, Fatorda Police Station, Fatorda, Goa and another (supra) was pleased to hold as under:

The perusal of the order passed by the learned Revisional court also shows that revisional Court has dismissed the revision by referring the provisions of Section 302 of Cr.P.C. In the present case, there is no application for conducting the prosecution by the complainant and hence provisions of Section 302 of Cr.P.C. is also not applicable for deciding present application moved by the complainant. The observations of the learned Revisional Court are therefore erroneous and calls for interference of this Court. Taking into consideration, that the trial has already commenced and one witness was already examined by the prosecution, who was also cross-examined by the accused. In my opinion the present application below Exhibit 90 at such a belated stage itself was not maintainable, ought to have been rejected.

Thus, taking into consideration settled law and the observations made by the Single Judge of this Court in the case of Bharat alias Bhomaram Choudhary Vs. State, the Police Inspector, Fatorda Police Station, Fatorda, Goa and another (supra), a case is made out for interference of this Curt for exercise the discretion under Article 226 of the Constitution of India. Hence, I am inclined to pass the following order.

The writ petition is allowed;

The impugned order dated 29.10.2025 passed by the learned District and Additional Sessions Judge-1, Nagpur in Criminal Revision Application No. 99 of 2019 and impugned order dated 01.02.2019, passed by learned Judicial Magistrate First Class, Nagpur below Exhibit 90 in Regular Criminal Case No. 1586 of 2009, are hereby quashed and set aside.

However, taking into consideration that the trial is pending since 2009, the learned trial Court is directed to conclude the trial as expeditiously and not beyond the period of one year.

Rule is made absolute with the above observations and writ petition stands disposed of accordingly.