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Vinayak Purushottam Kalantre Vs. Vikram Balwantrao Deshmukh and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Judge
Reported in1979CriLJ71
AppellantVinayak Purushottam Kalantre
RespondentVikram Balwantrao Deshmukh and ors.
Excerpt:
.....smt v.k. tahilramani & a.s. oka, jj] declaration as to forfeiture of book held, the power can be exercised only if the government forms opinion that said publication contains matter which is an offence under either of sections 124-a, 153-a, 153-b, 292, 293, 295a of i.p.c., - kathi kalu 1961crilj856 .in substance it is, therefore the contention of the counsel that we should follow the earlier view of the supreme court because according to him the view taken in shyamlal's case is not a good law. kathi kalu oghad 1961crilj856 .further, it is not possible for this court to ignore the later decision of the supreme court which is directly on the point only because the learned counsel thinks that the earlier decision of the supreme court was not brought to its notice, as a matter of..........the said decision the supreme court has not considered the view taken by the larger bench in its earlier decision reported in state of bombay v. kathi kalu oghad : 1961crilj856 . according to the learned counsel in the earlier case it was held by the supreme court that any document which was earlier executed by the person before he was made an accused could be called for by the court and is also admissible in evidence, whereas in the subsequent case viz in shyamlal's case the supreme court has taken the view that under section 94 of the code of criminal procedure no summons could be issued to the accused persons even for production of such a document. therefore, according to the learned counsel the subsequent view of the supreme court runs counter to the earlier view taken by the.....
Judgment:

Dharmadhikari, J.

1. The petitioner in the present case had filed a private complaint against the respondents before the Judicial Magistrate, First Class, Baramati for the alleged offences under Sections 408 and 420 read with Section 34 of the I P. C. It is an admitted position that in that case the respondents before this Court were the accused persons. Thereafter by the application dated 31st of Jan. 1977 the complainant filed an application before the Magistrate requesting him to issue summonses to respondent Nos. 1 to 3 calling upon them to produce the documents enumerated in the application. This application was opposed by the respondents. Ultimately by the order dated 17th Aug. 1977 the learned Judge rejected the application filed by the complainant, as according to the learned Judicial Magistrate, First Class in view of the decision of the Supreme Court in State of Gujarat v. Shyamlal Mohanlal : 1965CriLJ256 the Court has no authority or jurisdiction to issue any such summonses against the accused persons.

2. Being aggrieved by this order passed by the Judicial Magistrate, First Class, the present petition is filed by the original complainant. The main contention raised before us by the learned Counsel for the complainant is that the subsequent decision of the Supreme Court reported in State of Gujarat v. Shyamlal Mohanlal : 1965CriLJ256 is not binding upon this Court as in the said decision the Supreme Court has not considered the view taken by the larger Bench in its earlier decision reported in State of Bombay v. Kathi Kalu Oghad : 1961CriLJ856 . According to the learned Counsel in the earlier case it was held by the Supreme Court that any document which was earlier executed by the person before he was made an accused could be called for by the Court and is also admissible in evidence, whereas in the subsequent case viz in Shyamlal's case the Supreme Court has taken the view that under Section 94 of the Code of Criminal Procedure no summons could be issued to the accused persons even for production of such a document. Therefore, according to the learned Counsel the subsequent view of the Supreme Court runs counter to the earlier view taken by the larger Bench of the same Court in State of Bombay v. Kathi Kalu : 1961CriLJ856 . In substance it is, therefore the contention of the Counsel that we should follow the earlier view of the Supreme Court because according to him the view taken in Shyamlal's case is not a good law.

3. Obviously it is not possible for us to accept this contention. In the latter decision viz. in Shyamlal's case : 1965CriLJ256 it is held by the Supreme Court that Section 94 of the Old Cr. P, C. corresponding to Section 91 of the new Cr.P.C. 1974 does not apply to the accused person at all. Obviously, therefore where it is intended to require an accused person to produce a document which is incriminatory in nature a summons cannot be issued. Such a question was not directly posed before the Supreme Court when the matter was decided in State of Bombay v. Kathi Kalu Oghad : 1961CriLJ856 . Further, it is not possible for this Court to ignore the later decision of the Supreme Court which is directly on the point only because the learned Counsel thinks that the earlier decision of the Supreme Court was not brought to its notice, As a matter of fact the scope and area of consideration in Shyamlal's case as well as in State of Bombay v. Kathi Kalu : 1961CriLJ856 were wholly distinct and different Later decision of the Supreme Court reported in Shyamlal's case is obviously to the point and is, therefore, binding upon this Court. In the present case it is not disputed before us that the respondents are the accused persons and it is also not disputed that the original complainant wanted the Court to issue summons to them under Section 91 of the Cr.P.C. for the production of incriminatory documents. In these circumstances, in our opinion, the learned judicial Magistrate was right in taking the view that the summonses could not be issued in view of the law pronounced by the Supreme Court in Shyamlal's case.

4. It was also contended by the learned Counsel that in later decision viz. in Shyamlal's case : 1965CriLJ256 the Supreme Court has also not considered its earlier decision reported in M. P. Sharma v. Satish Chandra : 1978(2)ELT287(SC) . In our opinion there is no substance in this contention also. As a matter of fact the case reported in State of Gujarat v. Shyamlal : 1965CriLJ256 was nothing but an appeal filed by the aggrieved party against the decision of the Gujarat High Court in State of Gujarat v. Shyamlal : AIR1963Guj178 . In this decision of Gujarat High Court a specific reference was made to the earlier decision of the Supreme Court in M. P. Sharma v. Satish Chandra : 1978(2)ELT287(SC) . The view taken by the Gujarat High Court in Shyamlal's case is upheld by the Supreme Court. In this view of the matter in our opinion there is no substance in this application and the application fails.

5. Rule is discharged.


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