RAJU (RAJABHAU) MAHADU DAHIPHALE v. THE STATE OF MAHARASHTRA & Ors.

Learned counsel Mr.Sayyed holding for Mrs. Deshpande 3 951.CR.WP-2045-2024.doc appearing for Respondent No.2 repels the submissions of the petitioner. He would submit that present petition is not maintainable because state is not coming forward to challenge the impugned order. The private party can not prosecute the matter in this manner as per section 301 of Cr.P.C (section 338 of B.N.S.S,2023). It is further submitted that Dr.Swami is not concerned either with the treatment or the medical papers.

#8. The present petition is filed by the informant at whose instance the report was lodged. He is injured witness. I have gone through section 301 of Cr.P.C(section 338 of B.N.S.S) which contemplates the conduct of the prosecution by the Public Prosecutor or the A.P.P. In the present case the question is as to whether the private person can maintain the present petition challenging the order in question. Considering the provisions of sections 301 and 302 of Cr.P.C (sections 338 and 339 of B.N.S.S,2023), I find that there is no impediment in entertaining the present petition. The petitioner is victim and is espousing the cause of the respondent/state. It is not that the application Exhibit-129 was preferred by private person. The objection of learned counsel for the Respondent No.2 is hyper- technical. Besides that the trial court has ample power under section 311 of Cr.P.C (section 348 of B.N.S.S) to examine any person as a witness at any stage of the trial. In that view of the matter I overrule the objections of the Respondent No.2.

#9. I have considered rival submissions of the parties. After perusing first information report, it is clear that petitioner is the 4 951.CR.WP-2045-2024.doc informant and injured witness also. His brother Evalis sustained major injury. Petitioner, his brother and father were being treated at the medical hospital at Latur. The treatment was given by Dr.Ganesh Swami. His brother was indoor patient for thirty days. Though final opinion is given by Dr.Pramod Sangvikar, it can not be said that Dr.Swami had no concerned with the treatment or the medical papers. The matter is at the evidence recording stage and endeavour should always be made to extend opportunity to both the sides to unravel the truth. Medical papers is part of charge-sheet. Learned Judge should have given one opportunity by issuing witness summons to the concerned medical officer. I find that the approach of the learned Judge is against principles of natural justice as well as arbitrary. I therefore pass following order : ORDER a)Writ petition is allowed. b) Impugned order dated 18.10.2024 below Exhibit-129 in Sessions Case No.2 of 2021 passed by the Additional Sessions Judge, Ahmedpur, District Latur is quashed and set-aside. c) The application Exhibit-129 stands allowed. vsj.. [ SHAILESH P. BRAHME, J.]