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2012 DIGILAW 608 (BOM)

Kishor v. State of Maharashtra

2012-03-20

M.L.TAHALIYANI

body2012
JUDGMENT 1. Heard Mr. Rupesh Jaiswal, learned counsel for the appellant (applicant) and Mr. C.N.Adgokar, learned Additional Public Prosecutor for the Respondent. 2. ADMIT. 3. Heard finally by consent of the parties. 4. The applicant is accused in Special Criminal Case No. 6 of 2010 pending on the file of Adhoc Additional Sessions Judge-1, Nagpur. 5. This revision application is filed against order dated 17th October, 2011 passed by the trial Judge. The applicant has applied for recall of P.W. Nos. 3 and 4, which application has been rejected by the following order: .“Previously these witnesses were recalled vide Order passed below Exh.32 dated 14..11, now again they are recalled. It is experienced that the advocate not remained present on promised to the Court. It shows that the Advocate of accused do not wish to Cross examine the witnesses. The case is prolonged unnecessarily, application is rejected.” 6. Copies of depositions of P.W. Nos. 3 and 4 are annexed to the present revision application. I have gone through depositions of P.W. Nos. 3 and 4. It is seen that absence of advocates for the applicant is recorded at the bottom of the depositions. The applicant was directed to cross-examine the witnesses himself. The applicant had declined to cross-examine P.W. Nos. 3 and 4. It appears that the learned Advocate Mr. Jaiswal was not present when the examination-in-chief of P.W. Nos. 3 and 4 was over. The evidence of P.W. Nos. 3 and 4 was recorded on 26th June, 2011 and 14th July, 2011. It appears that one of the colleagues of Advocate Jaiswal was present on 14th July, 2011. After examination of P.W. 4, the colleague of Advocate Mr. Jaiswal, had requested for adjournment, which was refused by the learned trial Court. As already stated, the applicant himself was directed to cross-examine the witnesses. The applicant could not cross-examine the witnesses and declined to do so. Thereafter an application was made for recall of P.W. Nos. 3 and 4 for cross-examination which has been rejected by the impugned order. No doubt, it was the duty of the learned Advocate for the applicant to remain present when the evidence of the witnesses being recorded. But, at the same time, the Court cannot run away from its own responsibility and duty to see that all necessary steps are taken to secure the ends of justice. No doubt, it was the duty of the learned Advocate for the applicant to remain present when the evidence of the witnesses being recorded. But, at the same time, the Court cannot run away from its own responsibility and duty to see that all necessary steps are taken to secure the ends of justice. The accused cannot be made to suffer even if there is some negligence on the part of the Advocate for the accused. In the present case, there is no finding that the learned Advocate was negligent in discharge of his duty. He might be absent for some reason, which is not on record. However, the fact remains that the evidence of P.W. 3 and 4 has remained unchallenged for want of cross-examination. The learned trial Court should have realized that it could cause a serious prejudice to the case of the applicant. 7. In the present circumstances, if trial Court found that the learned Advocate for the applicant was purposefully avoiding to appear, he could have directed the applicant to appoint another lawyer and could have given him some time to do so. In alternate, the Court could have appointed a lawyer from Free Legal Aid Panel for the applicant so that P.W. Nos. 3 and 4 could be cross-examined. The learned trial Court should have further realized that the judgment passed on the basis of such evidence, which has remained unchallenged for no fault on the part of the applicant, could have been set aside simply on this ground itself which might have resulted in unnecessary waste of time. It is, thus, clear that though the learned Advocate for the applicant was supposed to be in the Court on the date when the evidence was recorded, the learned trial Court could not have taken such an extreme view of proceeding further without cross-examination of important witnesses. The learned trial Court could have taken one of the steps described by me hereinabove. Since it is not done, the order passed by the learned trial Court refusing to recall witness Nos. 3 and 4 is bad in law and needs to be set aside. 8. Hence, order below Exh.38 dated 17th October, 2011 refusing to call P.W. Nos. 3 and 4 is set aside. The trial Court is directed to issue summons P.W. Nos. 3 and 4 and recall them. 3 and 4 is bad in law and needs to be set aside. 8. Hence, order below Exh.38 dated 17th October, 2011 refusing to call P.W. Nos. 3 and 4 is set aside. The trial Court is directed to issue summons P.W. Nos. 3 and 4 and recall them. The learned trial Court is further directed to allow the applicant to cross-examine P.W. Nos. 3 and 4. 9. The revision application, accordingly, stands disposed of.