Poornima Finance Corporation vs Lilly Joseph

Jawad Rahim, J.—Complainant is in revision u/s 397, Criminal Procedure Code (Cr.P.C.) questioning the order dated 28.1.2008 in Criminal Revision Petition 496/07 on the file of Sessions Judge, Fast Track Court-VI, Bangalore City, allowing the application moved by the accused under Sections 45 and 47, Evidence Act to refer the documents for the opinion of handwriting expert.

Learned Counsel for the petitioner submits that in this revision, this Court may consider only one aspect, that is, jurisdiction of the Sessions Judge to entertain revision against an interlocutory order. He relied on an unreported decision of this Court in Crl. R.P. 939/05 dated 1.3.2006 to contend that this Court has held that revision against an order which is interlocutory in nature is not maintainable before the Sessions Court. He submits taking note of this aspect with reference to Section 397(2), Criminal Procedure Code (Cr.P.C.), this Court held that referring the document to the handwriting expert was an interlocutory order against which revision was not maintainable before the Sessions Court. On that basis, learned Single Judge allowed the revision against the said order. The said decision, he requests, be applied.

At the outset, it needs to be mentioned that in the judgment rendered by the learned Single Judge, no doubt it is held the Sessions Judge could not accept the revision petition in view of Criminal Procedure Code the bar under Sub-section (2) of Section 397, Criminal Procedure Code (Cr.P.C.), but it is without reference to the judgment in the case of Mrs. Kalyani Baskar v. Mrs. M.S. Sampoornam 2007 STPL 3772 wherein the Apex Court, with reference to Section 243, Criminal Procedure Code (Cr.P.C.) held that ''accused has a right statutorily conferred by law to lay his specific defence and in furtherance of the same, if he were to make a request to the trial Court to refer any document for examination by an expert for his opinion, that is one step in aid of his defence. Any order rejecting such request amounts to deprival of right conferred on the accused u/s 243, Criminal Procedure Code (Cr.P.C.) It amounts to denial of opportunity and the right to defend. Such orders are revisable u/s 397, Criminal Procedure Code (Cr.P.C.) by the Court conferred with the power of revision.''

Such aspects were not noticed by the learned Single Judge when he rendered the judgment on 1.3.2006 referred to by the learned Counsel. What was considered by the learned Single Judge was the scope of Section 397, and not requirement u/s 243, Criminal Procedure Code (Cr.P.C.)

We are in this case concerned with a similar situation. If I apply the decision of the learned Single Judge, it has to be held that the revision was not maintainable before the Sessions Judge, but when the case is examined keeping in mind Section 243, Criminal Procedure Code (Cr.P.C.), it has to be held that rejection of the application by the Magistrate and refusing to refer the documents for the opinion of the handwriting expert, was denial of the right to defend which is one imbibed under the statute for the benefit of the accused. Such an order, in effect, has taken away the right of the accused and therefore, the Sessions Judge was right in calling for the record and examining the legality, propriety and sustainability of such order.

Being of this view, I am satisfied the grounds urged in this revision do not merit acceptance. I hold that the Sessions Judge was right in entertaining the revision and setting aside the order passed by the Magistrate and directing documents to be referred for analysis by the handwriting expert.

In the result, the petition fails. It is dismissed, confirming the order of the Sessions Judge in Crl. R.P. 496/07 passed on 28.1.2008.