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2008 DIGILAW 487 (BOM)

Gangu Suryabhan Jadhav v. State of Maharashtra

2008-04-01

S.R.DONGAONKAR

body2008
JUDGMENT: Heard Mr. Firdos Mirza, Advocate for the applicant, Mr. Anoop Parihar, A.P.P. for respondent state & Mr. M.I. Dhatrak, Advocate for the intervenor. 2. This is an application under section 482 of Criminal Procedure Code. The applicant is accused in Trial for the offence punishable under section 302 of I.P.C. bearing Sessions Trial No.293/2002 in the court of Additional Sessions Judge, Pandharkawada (Kelapur). In this case, six prosecution witnesses have been already examined. Investigating Officer was to be examined. At that stage of trial, the intervenor . complainant filed an Application Exhibit 31 by which he applied for examination of one Nandu Bhaurao Rathod who is alleged eye witness to the incident. He had contended that his (Nandu's) statement was recorded during the investigation and the same was in the case diary. According to him, further he did not notice the name of this witness as prosecution witness in charge sheet. So he applied to the court on 30.7.2007 to call him as witness by requisitioning statement of that witness from case diary. The prosecution had given say; saying that the statement of witness Nandu Rathod was recorded by P.S.I. Jirapure, but due to mistake it was not submitted along with the charge sheet. The prosecution also informed that the prosecution was going to file that statement of Nandu Rathod on record. 3. Learned Additional Sessions Judge then passed an order to allow production of document and issued summons to witness Nandu Rathod. 4. It may be stated that prosecution had also filed an application to the place said statement on record and to summon Nandu Rathod as witness vide Exh. 33 and 35. Learned trial Judge directed issue of summons to that witness in the interest of justice. These orders are challenged by this application. 5. Learned counsel for the applicant Shri Mirza submitted that as the statement of witness Nandu Rathod was not submitted along with the charge sheet, the prosecution can not examine that witness. Apart from this, it is his submission that the said statement was not at all in the case-diary and in fact he was not examined during examination of Investigating Officer Jirapure and therefore, the orders passed by the learned trial Judge are illegal and without any basis and they are liable to be quashed and set aside. 6. Apart from this, it is his submission that the said statement was not at all in the case-diary and in fact he was not examined during examination of Investigating Officer Jirapure and therefore, the orders passed by the learned trial Judge are illegal and without any basis and they are liable to be quashed and set aside. 6. As against this, learned A.P.P has contended that the statement of the said Nandu Rathod was found in the case diary, although said Nandu Rathod was not cited as prosecution witness in the charge sheet and the said statement was not filed along with charge sheet due to mistake, he therefore supported the orders of the learned trial Judge. 7. Learned counsel for the intervenor . complainant Shri Dhatrak relying on the judgment of Apex Court in (2002) 5 SCC 82 CBI ..vs.. R.S.Pai and another submitted that the witness who has been examined by the Investigating Officer, and whose statement is not on record, i.e. not filed along with the charge sheet can be examined. He has relied on paragraph 7 of the said judgment. 8. With the help of the learned A.P.P. I have perused the case diary. In day to day diary, there appears no mention about the examination of the said Nandu Rathod during the investigation. Said statement of Nandu Rathod does not appear to be dated. The debatable question has also been raised about its admissibility. 9. In view of (2002) 5 SCC 82 C.B.I. ..vs.. R.S. Pai, wherein in paragraph 7 it has been observed thus: “7) From the aforesaid sub-sections, it is apparent that normally, the investigating officer is required to produce all the relevant documents at the time of submitting the charge sheet. At the same time, as there is no specific prohibition, it cannot be held that the additional documents cannot be produced subsequently. If some mistake is committed in not producing the relevant documents at the time of submitting the report or the charge . sheet, it is always open to the investigating officer to produce the same with the permission of the court. In our view, considering the preliminary stage of prosecution and the context in which the police officer is required to forward to the Magistrate all the documents or the relevant extracts thereof on which the prosecution proposes to rely, the word .shall. In our view, considering the preliminary stage of prosecution and the context in which the police officer is required to forward to the Magistrate all the documents or the relevant extracts thereof on which the prosecution proposes to rely, the word .shall. used in sub-section (5) cannot be interpreted as mandatory, but as directory. Normally, the documents gathered during the investigation upon which the prosecution wants to rely are required to be forwarded to the Magistrate, but if there is some omission, it would not mean that the remaining documents cannot be produced subsequently. Analogous provision under Section 173(4) of the Code of Criminal Procedure, 1898 was considered by this court in Narayan Rao ..vs.. State of A.P. (SCR at P.293) and it was held that the word .Shall. occurring in sub-section (4) of Section 173 and subsection (3) of 207-A is not mandatory but only directory. Further, the scheme of sub-section (8) of Section 173 also makes it abundantly clear that even after the charge-sheet is submitted, further investigation, if called for is not precluded. If further investigation is not precluded then there is no question of not permitting the prosecution to produce additional documents which were gathered prior to or subsequent to the investigation. In such cases, there cannot be any prejudice to the accused. Hence, the impugned order passed by the Special Court cannot be sustained.. It may not be illegal to examine such witness, even if his statement is not filed along with charge sheet, but all the same, it has to be at least prima facie shown that he was examined during the investigation and due to inadvertence such statement could not be filed along with the charge sheet and also his name could not be cited as prosecution witness. 10. In these circumstances, such type of applications need to be considered only after the concerned I.O. is examined and he clarifies the position regarding examination of such witness on oath during the evidence and also explains why the said statement was not filed along with charge sheet and why he (witness) was not cited as prosecution witness. 11. It is informed that this witness (I.O.) did not appear and bailable warrant was issued against him. If, he does not appear even on bailable warrant, coercive process can be issued, which the learned trial Judge may consider on merits. 12. 11. It is informed that this witness (I.O.) did not appear and bailable warrant was issued against him. If, he does not appear even on bailable warrant, coercive process can be issued, which the learned trial Judge may consider on merits. 12. In sequel this application is allowed. Impugned orders dated 27.8.2007 passed by the learned Additional Sessions Judge, Pandharkawada below Exh. 33 and 35 in Sessions Trial No.293/2002 are hereby set aside. It is directed that the prosecution shall examine the I.O. Jirapure first and then it may make fresh application for examining the witness Nandu Rathod. The same shall be considered by the learned trial Judge on merits after hearing the parties. Statement of the said Nandu Rathod is already on record, therefore, no separate order is necessary, but it is made clear that its admissibility can also be considered by learned trial Judge on merits. It is further made clear that the above observations shall not influence the learned trial Judge, any way while deciding anything as regards examination of said Nandu Rathod on merits. The application stands disposed of accordingly.