High Court
Legal Reasoning
{1} CR WP 1686 OF 2023IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO. 1686 OF 20231] Santosh S/o Bhikaji MoteAge: 25 years, Occu.: Labour,2]Vilas S/o Bhikaji MoteAge: 40 year, Occu.: Labour.3]Kailas S/o Bhikaji MoteAll R/o Indira Nagar, Garkheda Parisar,Tq. And Dist.Aurangabad... PetitionersVersus.The State of Maharashtra..Respondent …..Advocate for Petitioners : Mr.Chaitanya C.Deshpande APP for Respondent : Mr.N.R.Dayama ….. CORAM : ABHAY S. WAGHWASE, J. RESERVED ON : 26 AUGUST, 2024 PRONOUNCED ON : 02 SEPTEMBER, 2024 ORDER :- 1. By invoking provisions under Section 227 of the Constitutionof India, petitioners, original accused has set up following prayers :B]By issuing a writ of certiorari or any other appropriate writ ororder or directions in the like nature the order below Exhibit 50 inSessions case no.330/2021 passed by the additional sessions judgeAurangabad, be quashed and set aside and the application exhibit 50may kindly be allowed as prayed for.
Legal Reasoning
{2} CR WP 1686 OF 2023C]Pending the hearing and final disposal of this criminal writpetition, the further proceedings of Sessions Case No.330/2021pending before the court of additional sessions judge at Aurangabadbe stayed. D] As the petitioner is in jail the affidavit in support of thispetition may kindly be dispense with.” 2.Mr.Deshpande, learned Advocate for the petitioners wouldsubmit that by virtue of Crime No.464 of 2021, on report, offencewas registered under Sections 302, 326, 504, 506 read with Section34 of the Indian Penal Code against in all four persons. That casewas committed to the Court of Sessions and learned AdditionalSessions Judge commenced trial vide Sessions Case No.330 of 2021.Learned Advocate pointed out that recording of evidence is inprogress. That even prosecution witness no.1 namely Ramesh UttamJadhav, who is informant, has adduced his evidence at Exh.47. Thattwo Advocates were representing four accused persons. Advocaterepresenting present petitioners was not present and even whenthere was no authorization to other Advocate representing accusedno.4, he has conducted cross-examination even on behalf of presentpetitioners. That there were no oral or written instructions or evenVakalatnama in favour of said Advocate to represent presentpetitioners. Resultantly, there was ineffective cross-examination by {3} CR WP 1686 OF 2023said Advocate. Therefore, application Exh.50 was pressed intoservice, but learned trial Court rejected the same holding thatAdvocate D.B.Zodge has already conducted cross-examination. 3.Learned Advocate pointed out that there was nothing in blackand white on record permitting Advocate Zodge to represent evenpresent petitioners. Therefore, cross-examination of sole accusedcannot be applied to present petitioners. That serious prejudice hasbeen caused to their case and therefore, learned Advocate submitsthat it is necessary to direct the trial Court to allow recalling of thewitness PW1 Ramesh Uttam Udhav / informant to enable presentpetitioners to cross-examine him, who is a crucial witness. That evenlearned trial Court has not considered and appreciated the scope andobject of Section 311 of the Code of Criminal Procedure (Cr.P.C.) andhas erred in rejecting application exh.50. Lastly, it is submitted that, if such opportunity is not given thenpetitioners will lose precious opportunity and valuable right todefend their own case. Hence, the above prayers. 4. Above application is opposed by learned APP, who pointed outthat it is evident from the record that Advocate Zodge, representingaccused, has conducted cross-examination. That there was no {4} CR WP 1686 OF 2023application for adjournment or even matter was not sought to bekept back for appearance of so called Advocate representingpetitioner. After hearing Advocate Zodge, learned trial Court allowedcross-examination to be conducted on behalf of all accused and assuch, present attempt to recall is only with sole intention of filing uplacuna left out in cross-examination and therefore, trial learned Courtcommitted no error whatsoever in rejecting application and evenaccording to him, no case is made out to allow the prayers and so heprays to dismiss the petition. 5.After considering the submissions of both sides, there is nodispute that present petitioners are facing trial vide Sessions CaseNo.330 of 2021 on the file of Additional Sessions Judge, Aurangabadi.e. Sessions trial for commission of offence under Sections 302, 326,504, 506 read with 34 of the Indian Penal Code. Present petitionersSantosh Bhikaji Mote, Vilas S/o Bhikaji Mote and Kailas S/o BhikajiMote as emerging from the papers, are arraigned as accused. 6.Papers show that prosecution has opened the case byexamining PW1 Ramesh / informant, who faced cross-examinationon 17-08-2023 at exh.47. One Advocate Dilip Ghodke seems to haveconducted cross-examination on behalf of accused persons and said {5} CR WP 1686 OF 2023cross-examination was completed and there is Court endorsement onexh.47. There is no re-examination i.e. 17-08-2023 itself. Applicationexh.50 seems to have been moved by present petitioners on 04-09-2023 i.e. after 18 days contending that, defence Advocaterepresenting accused nos.1 to 3 was not present during the cross-examination and only Advocate representing accused no.4 waspresent and he conducted cross-examination but on behalf of all evenwhen he was not authorized. It is contended that PW1 Ramesh is aneye witness and therefore, it is necessary to cross-examine him indetail and therefore, PW1 Ramesh be recalled to enable petitioners /accused nos.1 to 3 to cross-examine him and that they are ready topay necessary charges for recall. 7.On going through Exh.50, it is emerging that learned trialCourt, on receipt of said application dated 04-09-2023 sought Say oflearned APP, who while opposing exh.50, gave following Say.“That on last date cross examination of witness was alreadyover. On that date no any application was filed. That scope of recalling witness is only allowed under re-examination. The scope of re-examination is narrow. Hence thisapplication may kindly be rejected.” 8.After considering the contents of the application exh.50, Say of {6} CR WP 1686 OF 2023learned APP, learned trial Court by order dated 04-09-2023 i.e. on thesame day, rejected the application, giving rise to instant petition.9.It is perceived from the submissions and the grounds thatSection 311 of the Cr.P.C. is tried to be invoked for raising aboveprayers i.e. setting aside the order passed by the trial Court on exh.50and seeking further directions to the trial Court to permit recalling ofPW1 Ramesh. Provisions under Section 311 of the Cr.P.C. having put into play,for the sake of clarity and brevity, it is desirable to reproduce the saidSection :311. Power to summon material witness, or examine person present.-Any Court may, at any stage of any inquiry, trial or other proceedingunder this Code, summon any person as a witness, or examine anyperson in attendance, though not summoned as a witness, or recalland re-examine any person already examined; and the Court shallsummon and examine or recall and re-examine any such person if hisevidence appears to it to be essential to the just decision of the case.”10.The settled principle on the point of object and scope ofpowers under Section 311 of the Cr.P.C. is dealt in following cases bythe Hon’ble Apex Court. (I)Ratanlal v. Prahlad Jat, (2017) 9 SCC 340.“17. In order to enable the court to find out the truth and render a {7} CR WP 1686 OF 2023just decision, the salutary provisions of Section 311 are enactedwhereunder any court by exercising its discretionary authority at anystage of inquiry, trial or other proceeding can summon any person aswitness or examine any person in attendance though not summonedas a witness or recall or reexamine any person already examined whoare expected to be able to throw light upon the matter in dispute.The object of the provision as a whole is to do justice not only fromthe point of view of the accused and the prosecution but also from thepoint of view of an orderly society. This power is to be exercised onlyfor strong and valid reasons and it should be exercised with cautionand circumspection. Recall is not a matter of course and thediscretion given to the court has to be exercised judicially to preventfailure of justice. Therefore, the reasons for exercising this powershould be spelt out in the order.” (II)Vijay Kumar v. State of U.P., (2011) 8 SCC 136“17. Though Section 311 confers vast discretion upon the court and isexpressed in the widest possible terms, the discretionary power underthe said section can be invoked only for the ends of justice.Discretionary power should be exercised consistently with theprovisions of (CrPC) and the principles of criminal law. Thediscretionary power conferred under Section 311 has to be exercisedjudicially for reasons stated by the court and not arbitrarily orcapriciously.” (III)Zahira Habibullah Sheikh (5) v. State of Gujarat, (2006) 3SCC 374.“27. The object underlying Section 311 of the Code is that there maynot be failure of justice on account of mistake of either party inbringing the valuable evidence on record or leaving ambiguity in thestatements of the witnesses examined from either side. The {8} CR WP 1686 OF 2023determinative factor is whether it is essential to the just decision ofthe case. The section is not limited only for the benefit of theaccused, and it will not be an improper exercise of the powers of thecourt to summon a witness under the section merely because theevidence supports the case of the prosecution and not that of theaccused. The section is a general section which applies to allproceedings, enquiries and trials under the Code and empowers theMagistrate to issue summons to any witness at any stage of suchproceedings, trial or enquiry. In Section 311 the significant expressionthat occurs is “at any stage of any inquiry or trial or other proceedingunder this Code”. It is, however, to be borne in mind that whereas thesection confers a very wide power on the court on summoningwitnesses, the discretion conferred is to be exercised judiciously, asthe wider the power the greater is the necessity for application ofjudicial mind.”(IV)State (NCT of Delhi) v. Shiv Kumar Yadav, (2016) 2 SCC 402. “… Certainly, recall could be permitted if essential for the justdecision, but not on such consideration as has been adopted in thepresent case. Mere observation that recall was necessary “forensuring fair trial” is not enough unless there are tangible reasons toshow how the fair trial suffered without recall. Recall is not a matterof course and the discretion given to the court has to be exercisedjudiciously to prevent failure of justice and not arbitrarily. While theparty is even permitted to correct its bona fide error and may beentitled to further opportunity even when such opportunity may besought without any fault on the part of the opposite party, plea forrecall for advancing justice has to be bona fide and has to be balancedcarefully with the other relevant considerations including uncalled forhardship to the witnesses and uncalled for delay in the trial. Havingregard to these considerations, there is no ground to justify the recallof witnesses already examined.” {9} CR WP 1686 OF 202311.Further it is to be noted that Sessions case is of 2021 and PW1Ramesh was examined on 17-08-2023. Out of four accused, defenceAdvocate for only accused no.4 seems to have undertaken cross-examination, but in the evidence of PW1, such cross-examination isnot shown to be confined to only accused no.4, rather it is “cross-examination on behalf of learned Advocate for accused nos.1 to 4.” 12.Learned Advocate for the petitioners fairly conceded thatevidence is shown to be on behalf of all accused, but he wouldemphasize that learned Advocate for accused no.4 was notauthorized to even conduct cross-examination on behalf of accusednos.1 to 3. However, on Court query, he fairly conceded that therewas no application on behalf of learned Advocate appearing foraccused nos.1 to 3 on that day seeking any adjournment. Applicationexh.50 seems to have come on record on 04-09-2023 when cross-examination of PW1 was already over on 17-08-2023. For almost aperiod of three weeks, no steps appear to have been taken i.e. on thesame day or even very next day. The Hon’ble Apex Court in the case of Umar Mohammad v.State of Rajasthan, (2007) 14 SCC 711 has held that “the delay infiling application is one of the important factors which has to be {10} CR WP 1686 OF 2023explained in the application.” Here on going through exh.50, it appears that there is noplausible explanation as to why Advocate representing accused nos.1to 3 was absent and why he was not in position to cross-examinecrucial witness like PW1 Ramesh / informant, who is eye witness.Delayed efforts frustrate the very claim. Further in the trial Court,learned Advocate appearing for accused no.4 has put on recordapplication exh.51 contending that “he most respectfully submitsthat the above stated case is pending for evidence but in the pastdate i.e. previous date I have cross examined on behalf of accusedno.1 to 3 as per their oral instructions”. 13.Therefore, considering such application, it appears thatdefence Advocate for accused no.4 also subjected informant to cross-examination on behalf of accused nos.1 to 3. Trial Court has notedthat there is no re-examination. Therefore, after such stage havingbeen reached and there being no justifiable ground showing whatexact prejudice has been caused, merely on application at a belatedstage for recalling, such request cannot be considered. Therefore,even this Court, as like trial Court, is convinced that no case is madeout for recalling. Consequently, I proceed to pass following order : {11} CR WP 1686 OF 2023ORDERCriminal Writ Petition No.1686 of 2023 is dismissed. ( ABHAY S. WAGHWASE ) JUDGE 14.On pronouncement of this order, learned Advocate for thepetitioners prays for six weeks time so as to enable him to approachthe Hon’ble Apex Court.15.Learned APP strongly opposes the same.16.Considering the above request made by learned Advocate forthe petitioners, six weeks time is granted to the petitioners toapproach the Hon’ble Apex Court. ( ABHAY S. WAGHWASE ) JUDGE SPT