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2012 DIGILAW 1226 (BOM)

Kishore Singnapurkar v. State of Maharashtra

2012-07-09

ABHAY M.THIPSAY

body2012
Judgment : Heard the learned counsel for the parties. 2. By consent, admitted and taken up for hearing forthwith. 3. The applicant is one of the accused in Special Case No.48/00, pending before the Special Judge, Bombay. The said case is in respect of offences punishable under the Prevention of Corruption Act, apart from the offences punishable under section 120B of the IPC read with409, 420, 468 and 471 of the IPC. The trial has progressed substantially. In the midst of trial, the prosecution made an application for calling one Mr.Chaskar as a witness. It appears that initially the application was styled as “for recalling” but later on, the relevant prayer was corrected by saying that the said Mr.Chaskar should be called as a witness 'under the provisions of section 311 of the Code of Criminal Procedure.' The learned Special Judge, after hearing the parties, allowed the said application. Being aggrieved thereby, the applicant has approached this Court invoking its inherent powers. 4. Admittedly, the said Chaskar was not cited as a witness in the list of witnesses contained in the chargesheet. 5. It is not necessary to go into the question whether it would just and proper to permit the said Chaskar to be examined as a witness, at this stage. What, however, needs to be observed is that no statement of Mr.Chaskar recorded in the course of investigation i.e. under the provisions of section 161 of the Code of Criminal Procedure, is on record. It is suggested before me that the statement had been recorded in the course of investigation but, that the same is not available. In any case, admittedly, even an ordinary copy of the said statement is not available and certainly it is not in the chargesheet. 6. Though there cannot be a general prohibition for examining the witness whose statement had not been recorded during the course of investigation, propriety requires that the statement of such a person should be recorded atleast before he is permitted to enter the witness box. If the statement of the said Chaskar has not been recorded or, at any rate, is not available, it was necessary for the investigating agency to have recorded his statement even at the stage of trial by seeking permission of the Court for the same. If the statement of the said Chaskar has not been recorded or, at any rate, is not available, it was necessary for the investigating agency to have recorded his statement even at the stage of trial by seeking permission of the Court for the same. It is only after his statement would be recorded, the Court would be in a position to form an opinion as to whether the evidence of such a witness would be necessary, desirable or even essential for a just decision of the case. Without knowing what the witness is likely to say, no proper opinion could have been formed by the learned Special Judge. 7. The procedure of recording the statement of a person by the investigating agency, before he is examined as a witness, though his statement was not recorded earlier during the investigation, also ensures that the accused is made aware as to what the witness is likely to depose. This would be necessary for providing a proper opportunity to the accused of defending himself. 8. Under the circumstances and in view of the aforesaid discussion, the learned counsel for the parties do not object to the following order being passed: 9. Application is allowed. The impugned order is set aside. 10. The prosecution/investigation agency shall be at liberty to record the statement of the said Chaskar under the provisions of Section 161 of the Code of Criminal Procedure and supply a copy thereof to the Court, as well as to the accused persons. 11. It is after the copy of the statement of the said Chaskar is furnished to the Court and supplied to the accused persons, that the prosecution may press the application for examining the said Chaskar as a witness and such prayer, it is needless to say, shall be considered by the Court on merits and in accordance with law. 12. Application is disposed of in the aforesaid terms.