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2004 DIGILAW 738 (BOM)

Rameshwar Bhagwat Dhawad v. State of Maharashtra

2004-06-23

S.T.KHARCHE

body2004
JUDGMENT - KHARCHE S.T., J.: - By invoking the jurisdiction of this Court under section 482 of the Criminal Procedure Code, the petitioner-accused has challenged the order dated 1-1-2002 passed by the learned Additional Sessions Judge in Criminal Revision Application No. 388/2001. whereby the revision came to be dismissed being not maintainable and the order dated 16-10-2001 passed by the Judicial Magistrate, First Class rejecting the application for recalling the witnesses for cross-examination under section 311 of the Criminal Procedure Code was confirmed. 2. Brief facts are as under: The petitioner-accused has been prosecuted for the offence punishable under sections 294 and 506 of the Indian Penal Code before the learned J.M.F.C. in Criminal Case No. 340/2000. He engaged Advocate Shri S.V. Deshmukh for the purpose of getting bail. The criminal case was fixed for recording of the evidence of the prosecution witnesses on 6-9-2001. Two prosecution witnesses; namely Bhimrao (P.W. 1) and Dilip (P.W. 2) were present. Their examination-in-chief was recorded on that day. The learned Counsel appearing for the accused was not present as he was engaged in some other Courts on that date. The accused was present, but no opportunity for cross-examination of the witnesses was given. The criminal case was posted for recording of further evidence on 20-9-2001, on which date the accused moved an application (Exh. 13) under section 311 of the Code of Criminal Procedure for recalling of the witnesses for cross-examination and this application came to be rejected by the learned Magistrate on 16-10-2001. Being aggrieved by this order, the accused preferred Criminal Revision No. 388/2001 in the Sessions Court and the learned Additional Sessions Judge by his order dated 1-1-2001 dismissed the said criminal revision being not maintainable against the interlocutory order. This order passed by the learned Sessions Judge is challenged in this petition. 3. Mr. Malode, the learned Counsel for the accused contended that the accused was present in the Court on 6-9-2001 but his Counsel was not available for taking cross-examination of two witnesses namely; Bhimrao (P.W. 1) and Dilip (P.W. 2). The learned Magistrate simply mentioned in the deposition of the witnesses that accused persons have declined to cross-examine the witnesses and subsequently these words were scored out. The learned Magistrate simply mentioned in the deposition of the witnesses that accused persons have declined to cross-examine the witnesses and subsequently these words were scored out. He contended that the courts below have violated the principles of natural justice since the opportunity for cross-examination of the prosecution witnesses has not been given and the case has been closed for recording the evidence of further witnesses. He contended that for the just decision of the case, it was utmost necessary to recall both the prosecution witnesses under section 311 of the Code and the courts below have failed to exercise their power under this provision of law and the impugned order therefore has resulted into miscarriage of justice. If the accused is not allowed to cross-examine the witnesses of the prosecution, a great prejudicewould be caused and the procedure adopted by the Magistrate cannot be sustained in law. He contended that the impugned order passed by the Revisional Court is equally unsustainable. He contended that the order refusing to call prosecution witnesses for cross-examination was not an interlocutory order and therefore, the impugned order has resulted into serious miscarriage of justice and deserves to be set aside. He further contended that the interest of justice requires that the accused persons be kindly allowed to cross-examine the prosecution witnesses. In support of these submissions, he relied on the decision of the Himachal Pradesh High Court in the case of (Dwarka Dass v. State of H.P.)1, 1980 Cri.L.J. 1018. 4. Mr. Mujumdar, the learned Additional Public Prosecutor contended that the Revisional Court was perfectly justified in rejecting the application for recalling of the witnesses and the same order cannot be called in question in this petition under section 482 of the Code. 5. This Court has carefully considered the contentions canvassed by the learned Counsel for the parties. Section 311 of the Code contemplates as under: Power to summon material witness, or examine person present.- Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine, any such person if his evidence appears to it to be essential to the just decision of the case. 6. 6. Bare reading of the aforesaid provision of the Code, it is apparent that if it is essential for the just decision of the case, the witnesses who have already been examined, can be recalled at any stage of the inquiry trial or proceedings. 7. In Dwarka Dass's case, 1980 Cri.L.J. 1018 cited (supra), the Himachal Pradesh High Court observed as under: "The accused-petitioner in his statement under section 313 of the Code and even in the present petition had made serious allegations against Shri Rup Chand, Inspector, Food and Civil Supplies. Therefore, after taking into consideration the principles of natural justice, I feel that it is necessary that the accused-petitioner should be afforded an opportunity of being heard. No cross-examination has been conducted in the statements of the prosecution witnesses who have been recorded on 14th January, 1980. Naturally such statements of the prosecution witnesses, who are material witnesses in the case will remain unchallenged and the accused is likely to suffer and may ultimately face conviction. Therefore, in the interest of justice and keeping in view the principles of natural justice, it is a fit case in which the accused-petitioner should be allowed an opportunity for cross-examining the prosecution witnesses to prove that the case filed against him is a false one. If this opportunity is not allowed then the accused-petitioner is likely to suffer due to his negligence or the negligence on the part of his Counsel and a serious miscarriage of justice is likely to take place. Similar views were taken in (Karma Chand Thapar (Private) Ltd., Calcutta v. Workmen of North Chirimiri Colliery)2, 1968 Lab.I.C. 712 (Mad. Prey), and (Gross Beckert Sabool Ltd. v. Jupiter General Insurance Co. Ltd.)3, A.I.R. 1965 Pun. 477." 8. In the present case, it is not disputed that the prosecution has been launched against the petitioner-accused for the offence punishable under sections 294 and 506 of the Indian Penal Code wherein Bhimrao (P.W. 1) is complainant and Dilip (P.W. 2) is a witness on the spot panchanama. The examination-in-chief was recorded of both the witnesses by the learned Magistrate on 6-9-2001. The learned Counsel for the accused was not available for conducting the cross-examination of these two witnesses and therefore, the case was posted for further evidence on 20-9-2001 on which date the accused-petitioner filed application (Exh. The examination-in-chief was recorded of both the witnesses by the learned Magistrate on 6-9-2001. The learned Counsel for the accused was not available for conducting the cross-examination of these two witnesses and therefore, the case was posted for further evidence on 20-9-2001 on which date the accused-petitioner filed application (Exh. 13) under section 311 of the Code for recalling of the witnesses for cross-examination. The same application was rejected erroneously by the learned Magistrate on 16-10-2001 and the error was carried forward by the Revisional Court rejecting the revision by simply saying that the revision against the interlocutory order is not maintainable. It would clearly reveal on perusal of the impugned orders that the principles of natural justice have been violated, as proper opportunity for cross-examination of the witnesses was not accorded. 9. The serious injustice which has come to the light is of a grave, and not of a trivial character. It is palpable and clear and not doubtful and there does not exist any other provision of law by which the aggrieved petitioner-accused could have sought the relief and, therefore, this Court is required to exercise the inherent power to act as ex debito justitiae to do the real and substantial justice to meet the ends of justice. 10. It follows that if the testimony of the complainant Bhimrao (P.W. 1) and of the panch witness Dilip (P.W. 2) is not subjected to cross-examination, the petitioner-accused is likely to face conviction. Therefore, in the interest of justice and keeping in view the principles of natural justice, it is obvious that this is a fit case in which the accused-petitioner should be allowed an opportunity for cross-examination of the prosecution witnesses and to put up his defence without which it would not be possible for the Magistrate to deliver the just decision in the case. 11. 11. The impugned order has resulted into the serious miscarriage of justice and, therefore cannot be sustained in law in such circumstances, keeping in view the aforesaid situation, this Court allows the petition of the petitioner-accused for recalling of the prosecution witnesses and set aside the impugned order passed by the Additional Sessions Judge as well as the Magistrate and direct the petitioner-accused to appear before the Court of Judicial Magistrate, First Class on 5th July, 2004 and the learned Magistrate is directed to grant an opportunity for cross-examination through the Counsel of the accused-petitioner. The learned Magistrate is expected to decide the criminal case expeditiously, within a period of three months. Record and proceedings be sent back immediately, without any delay. Petition allowed. -----