High Court

Legal Reasoning

1 Cri.W.P. 730-2024.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 730 OF 2024Shashikant s/o Vitthal Kothawade,Age : 64 years, Occu. : Retired,R/o. : Flat No. 303, Tulshiratna Apartment,Rajbihari Link Road, RTO Corner,Nasik... PetitionerVersus1.The State of Maharashtra2.Union of IndiaThrough Central Bureau of Investigation .. RespondentMr. Nilesh S. Ghanekar, Advocate for the Petitioner.Smt. Chaitali Choudhari-Kutti, APP for Respondent No. 1/State.Mr. Sachin S. Panale, Special P.P. for C.B.I./Respondent No. 2. CORAM : KISHORE C. SANT, J.Date on which reserved for order : 14th July, 2025.Date on which order pronounced : 07th August, 2025. FINAL ORDER :- .The accused facing trial for an offence under the Preventionof Corruption Act has approached this Court for quashing of theimpugned order whereby the application of the accused for settingaside no cross order and for recalling PW- 2 for further cross-examination came to be rejected by the learned Special Judge 1 of 14 2 Cri.W.P. 730-2024.odt(A.C.B.), Aurangabad in Special (ACB) Case No. 21/2018 by orderdated 08.01.2024. 2.The facts in short are that, the present petitioner is chargedwith the offence punishable under sections 7and 13(2) r/w 13(1)(d) of the Prevention of Corruption Act. In the trial, PW-2 defacto complainant was examined in the year 2018. His cross-examination started on 16.11.2018. The learned advocate for therespondent prayed for an adjournment on 16.11.2018 and he didnot further cross-examined. The matter proceeded further. Theevidence of other witnesses was recorded. At this stage, thepetitioner filed an application Exh. 90 for setting aside no crossorder dated 21.12.2023. The respondent/State filed say. It isstated that, the cross-examination started on 16.11.2018. Timewas granted at the request of learned advocate for the accusedand the matter was posted on 17.12.2018 and since then the crossof the witness is pending. On 22.04.2019 no cross order came tobe passed for the first time. The prosecution thereafter examinedfive witnesses. On 24.11.2022 Exh. 71 application came to befiled for setting aside no cross order. The said application came tobe allowed on 30.01.2023. The witness was present on 2 of 14 3 Cri.W.P. 730-2024.odt17.04.2023, however, even on that day the defence could notcross-examine the witness. The witness was therefore discharged.On 04.05.2023 the defence again filed an application Exh. 80 forrecalling the witness. That application was allowed on09.10.2023. However, even thereafter the defence failed to cross-examine the witness till 21.12.2023. The Court, therefore, againpassed no cross order for third time. By mentioning these dates,the application came to be opposed. 3.The learned Trial Judge considered application Exh. 90. Thelearned Court categorically recorded the dates and the events. Itis considered that, on previous date at around 01.45 p.m., learnedcounsel for the accused left to attend rites prior to marriage of hisniece. At 2.30 p.m. he had a matter before the High Court. Inview of that, the matter was taken up at 3.30 p.m. The matterwas kept back. However, till 4.30 p.m. the cross-examinationcould not be done. The learned Court, therefore, passed no crossorder. The learned Court further recorded in the order that, theevidence of PW-2 was recorded on 16.11.2018 and again time wassought for cross-examination. The witness was also not feelingwell and therefore, the case was adjourned and since thereafter 3 of 14 4 Cri.W.P. 730-2024.odtthe said witness is not cross-examined in spite of many chancesand adjournments. When Exh. 71 application was allowed forrecalling of the said witness along with one other witness, the saidapplication was allowed on a condition of payment of cost of Rs.1,500/- (Rs. One Thousand Five Hundred Only) per day to thewitness. On that condition the witness was called. The accusedagain sought time vide Exh. 76. That application was rejected andthe witness was discharged. Since thereafter no endeavour wasmade to call the witness till filing application under Exh. 80 on04.07.2023. Though the application was filed on 04.07.2023 itwas argued only in October 2023. The said application wasallowed subject to cost of Rs. 10,000/- (Rs. Ten Thousand only)with further direction to pay cost of Rs. 1,500/- (Rs. OneThousand Five Hundred only) per day to the witness. Though theorder was directed to be complied within one week, the accuseddid not comply with the said order. Thereafter, application wasfiled seeking permission to comply the order. The same wasallowed. 4.The learned Court further recorded that, on 21.12.2023 thewitness appeared at 11.00 a.m. in the morning since the said date 4 of 14 5 Cri.W.P. 730-2024.odtwas given as per the convenience of the learned advocate for theaccused. However, another learned advocate appeared for theaccused and made different submissions. He informed that, thelearned advocate for the accused would appear at 11.30 a.m.,however, the learned advocate did not appear. Later on, anotherjunior advocate informed the Court that, the learned advocatewould appear at 12.30 p.m. Even then the learned advocate didnot appear. The accused was specifically told to keep the learnedadvocate present by 1.00 p.m. The learned advocate did notappear. At 1.30 p.m. the learned advocate appeared, however, hetold that he would start the cross-examination after recess. Then,third junior advocate informed that, the learned advocate wouldappear at 3.30 p.m. The learned Court recorded that, at 3.30 p.m.the witness made a request to the Court to discharge him as hewas present since morning. The learned advocate for the accusedwas thereafter called, however, none appeared. The learned Courtconsidering that, even after five years the witness is not beingcross-examined, the learned Court again passed no cross order forthird time at 3.30 p.m. On that day, even application foradjournment was not filed, neither an application was filed for 5 of 14 6 Cri.W.P. 730-2024.odtsetting aside no cross order.5.An application below Exh. 90 came to be filed on04.01.2024. It is stated in the application that, learned advocatehad to attend one religious ceremony and the same was informedto the Court. The Court considered Section 309 of the Code ofCriminal Procedure (for short “Cr.P.C.”). It is considered that thewitness was present for cross-examination. He was waiting for hiscross-examination for five years. On 21.12.2023 the witness wasin the Court for almost five hours. The Court could not evenmanage the board since different junior advocates made differentsubmissions throughout the day. The Court by recording all theseevents held that, five years time is certainly not a reasonable time.The Court also recorded that, earlier the dates were grantedliberally and only after that passed an order rejecting theapplication. 6.The learned advocate Mr. Ghanekar for the petitionersubmits that, in fact, there is no strong justifiable case to allow theapplication. The conduct also cannot be justified. His mainsubmission is that, the petitioner being an accused needs a fair 6 of 14 7 Cri.W.P. 730-2024.odtopportunity. When learned advocate was not present, the Courtcould have offered an opportunity to the accused asking as towhether the accused is willing to conduct cross-examinationpersonally. No such opportunity was given. Considering theserious case, he submits that, if the evidence of the witness goesunchallenged, petitioner would suffer grave prejudice. He furtherundertakes to the Court that the cross-examination would beconducted in a day if the application is allowed. He relies uponthe following judgments :(i)State of Uttarakhand Vs. Tilak Seth and Ors. inCriminal Revision No. 161/2010.(ii)P. Sanjeeva Rao Vs. The State of A.P. reported inAIR 2012 SC 2242.(iii)Varsha Garg Vs. The State of Madhya Pradeshand ors. reported in AIR 2022 SC 3707.(iv)M/s Shrushti Developers, Nagpur and othersVs. Ramesh Rambhau Bidkar and ors. in Writ PetitionNo. 4825/2016. 7.The learned Special Prosecutor Mr. Panale for C.B.I. submitsthat, this is a case where no leniency can be shown to a litigant. 7 of 14 8 Cri.W.P. 730-2024.odtThe accused facing the trial under the Prevention of CorruptionAct must know the sanctity of the trial and the seriousness of theCourt proceedings. Twice no cross orders were set aside. Thelearned Court has recorded the circumstances in which thewitness was required to be discharged. He thus submits that,merely under the name of fair opportunity, no such applicationcan be allowed. He submits that, now all the witnesses areexamined except I.O. who is now being cross-examined. He reliesupon the judgment in the case of Swaran Singh Vs. State ofPunjab with Jagjit Singh Vs. State of Punjab reported in (2005) 5SCC 668 and prays for rejection of the petition.8.The learned A.P.P. adopts the argument of Mr. Panale,learned Special Prosecutor for C.B.I.9.From looking to the order passed by the learned Court andlooking to the manner in which the learned advocate did notconduct the cross-examination, it is clear that, the petitioner doesnot deserve any sympathy merely on the ground that he is anaccused facing a criminal trial. 8 of 14 9 Cri.W.P. 730-2024.odt10.In the case of the State of Uttarakhand (supra), the Courtconsidered the purport of Section 311 of the Cr.P.C. It isconsidered that, the Court shall exercise the powers for justdecision of the case. The Court can exercise the powers at anystage of any enquiry, trial and any proceeding.11.In the case of P. Sanjeeva Rao (supra), the Hon’ble ApexCourt considered the scope of Section 311 of the Cr.P.C. In thesaid case two prosecution witnesses were not cross-examined bythe counsel for the accused as the counsel for the accusedintended to cross-examine them after Trap Laying Officer hadbeen examined. No formal application to that effect was made.Even no oral prayer was made. The Court held that, because ofthe mistake of the advocate, the accused should not suffer apenalty totally disproportionate to the gravity of error committedby his lawyer. Denial of an opportunity to recall the witnesses forcross-examination would amount to condemning the appellantwithout giving him opportunity to challenge the correctness ofversion and the credibility of the witnesses. To test the credibilityof the witness in a civil or criminal case can be done only whenthe testimony is put through fire of cross-examination. If such 9 of 14 10 Cri.W.P. 730-2024.odtopportunity is denied, the same would result in seriousmiscarriage of justice. The Hon’ble Apex Court considered thecase of Swaran Singh (supra) in the judgment. 12.In the case of Varsha Garg (supra), the Hon’ble Apex Courtconsidered right of the accused to a fair trial. It is observed thatthe accused is constitutionally protected under Article 21. In thatcase, application for recall of witness was allowed to meet theends of justice. The observations in the case of Swapan KumarChatterjee Vs. Central Bureau of Investigation reported in (2019)14 SCC 328 are considered wherein the Court also held that, theCourt should not encourage filing of successive applications forrecall of a witness under this provision.13.In the case of M/s Shrushti Developers (supra), an order ofno cross was recalled and set aside. The petitioners were directedto cross-examine the respondent/witness on the next date beforethe Trial Court. It was made clear that, if the petitioners thereinfail to comply with the condition on cross-examining the witness,no further opportunity would be granted to the petitioners toconduct cross-examination. 10 of 14 11 Cri.W.P. 730-2024.odt14.So far as the case of Swaran Singh (supra) is concerned,paragraph No. 36 is material which is reproduced hereunder :“36.A criminal case is built on the edifice of evidence,evidence that is admissible in law. For that, witnesses arerequired whether it is direct evidence or circumstantialevidence. Here are the witnesses who are harassed a lot. Awitness in a criminal trial may come from a far-off place tofind the case adjourned. He has to come to the Court manytimes and at what cost to his own self and his family is notdifficult to fathom. It has become more or less a fashion tohave a criminal case adjourned again and again till thewitness tires and he gives up. It is the game of unscrupulouslawyers to get adjournments for one excuse or the other till awitness is won over or is tired. Not only that a witness isthreatened, he is abducted, he is maimed, he is done awaywith, or even bribed. There is no protection for him. Inadjourning the matter without any valid cause a Courtunwittingly becomes party to miscarriage of justice. Awitness is then not treated with respect in the Court. He ispushed out from the crowded courtroom by the peon. Hewaits for the whole day and then he finds that the matter isadjourned. He has no place to sit and no place even to have aglass of water. And when he does appear in Court, he issubjected to unchecked and prolonged examination andcross-examination and finds himself in a helpless situation.For all these reasons and other, a person abhors becoming awitness. It is the administration of justice that suffers. Thenappropriate diet money for a witness is a far cry. Here againthe process of harassment starts and he decides not to get thediet money at all. High Courts have to be vigilant in thesematters. Proper diet money must be paid immediately to thewitness (not only when he is examined but for everyadjourned hearing) and even sent to him and he should notbe left to be harassed by the subordinate staff. If the criminaljustice system is to be put on a proper pedestal, the systemcannot be left in the hands of unscrupulous lawyers and thesluggish State machinery. Each trial should be properly 11 of 14 12 Cri.W.P. 730-2024.odtmonitored. Time has come that all the Courts, district courts,subordinate courts are linked to the High Court with acomputer and a proper check is made on the adjournmentsand recording of evidence. The Bar Council of India and theState Bar Councils must play their part and lend theirsupport to put the criminal system back on its trial. Perjuryhas also become a way of life in the law Courts. A trial Judgeknows that the witness is telling a lie and is going back on hisprevious statement, yet he does not wish to punish him oreven file a complaint against him. He is required to sign thecomplaint himself which deters him from filing thecomplaint. Perhaps law needs amendment to clause (b) ofSection 340 (3) of the Code of Criminal Procedure in thisrespect as the High Court can direct any officer to file acomplaint. To get rid of the evil of perjury, the Court shouldresort to the use of the provisions of law as contained inChapter XXVI of the Code of Criminal Procedure.”15.This Court has considered the above cited judgments. Thepresent case is a gross case where twice no cross orders were setaside and still the witness was not cross-examined. Thecircumstances recorded by the Court which made it to pass nocross order for third time show the total reckless attitude of theaccused towards the Court proceedings. The Court is required torecord in the order that on the day when no cross order waspassed the Court even had find it difficult to manage the board astime to time requests were made to keep back the matter. In spiteof repeated requests for keeping the matter back the learnedadvocate did not turn up to cross-examine the witness. The Court 12 of 14 13 Cri.W.P. 730-2024.odtwas practically compelled to pass such an order. 16.The proceeding before the Court has the sanctity. Noproceeding before the Court can be taken so lightly. Looking tothe observations in paragraph No. 36 in the case of Swaran Singh(supra), this Court finds that, the observations are totallyapplicable to the present case. There is absolutely no justificationfor not examining the witness. In spite of passing no cross ordertwice even on third occasion the accused did not bother to cross-examine the witness. Merely saying that if opportunity is notgiven the accused would suffer irreparable loss cannot beconsidered in such cases. If this Court shows sympathy, it wouldbe misplaced sympathy. In this case the accused has literallyplayed with the Court. The act of accused in the present caseshows utter disregard to the Court proceedings. The precioustime of the Court is wasted because of the conduct of the litigant.In such circumstances still showing sympathy would practicallyencouraging such practices. It would be a mockery of the Courtby the Court itself. The Court cannot allow the litigant to take theproceedings lightly and still to show sympathy towards suchpersons. The act of the accused in the present case is totally 13 of 14 14 Cri.W.P. 730-2024.odtcondemnable beyond words.17.Considering all above, this Court is not at all impressed bythe submission that, to avoid miscarriage of justice, no cross orderneeds to be set aside. This Court finds that, such petitions areliable to be dismissed with heavy cost. 18.The present petition is, therefore, dismissed with cost ofRs. 50,000/- (Rs. Fifty Thousand only). The cost of Rs. 50,000/-(Rs. Fifty Thousand only) to be paid to the District Legal AidCentre, District Aurangabad within four (04) weeks from today.19.This Court appreciates the efforts taken by Mr. Panale,learned Special Prosecutor for C.B.I. in assisting this Court.20.As the trial is pending since 2018, the learned Trial Court isrequested to conclude the trial within three (03) months fromtoday.( KISHORE C. SANT, J. ) P.S.B. 14 of 14