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2014 DIGILAW 1016 (BOM)

Hira Ankush Mangavde v. State of Maharashtra

2014-04-22

A.I.S.CHEEMA

body2014
Judgment : 1. Admit. Heard finally with the consent of learned counsel for the parties. 2. Present Revision has been filed by the petitioner-original accused against order dated 13.1.2014, passed below Exh. 83 on 25.10.2013, by Sessions Judge, in Sessions Case No.12/2013, rejecting the request of the accused persons to call Dy.S.P. Anil Ghuge as witness under Section 311 of the Criminal Procedure Code, 1973 (Cr.P.C. for short). 3. The petitioners claim that, they are facing the trial for offence punishable under Sections 363, 366 read with Section 34 of the Indian Penal Code, wherein the complainant alleged that on 22.5.2010 he had arranged marriage of his daughter, and in the midnight, the petitioners instigated the daughter to elope with co-accused Deepak Baraskar and Ramchandra Baraskar. After statement under Section 313 of Cr.P.C., present petitioner No.4 (original accused No.6) had examined herself as defence witness and the evidence for accused was closed and matter was posted for final arguments on 25.10.2013. On that day, the petitioners filed the application under Section 311 of the Cr.P.C. requesting to call Dy.S.P. Ghuge as defence witness. It is claimed that, prosecution witness P.I. A.V. Raikar, the investigating officer and one Head Constable B.V. Jagtap had conspired and misused their powers to bring about malicious and vexatious criminal proceedings against the petitioners. Petitioner No.4 as defence witness deposed that she had given complaints against P.W.10 A.V. Raikar to the higher authorities, vide letters dated 3.8.2010, 11.10.2010 and 23.10.2010. On directions of the Home Minister, Dy. S.P. had conducted the enquiry in the matter, wherein statements of P.W.10 A.V. Raikar and the Head Constable Jagtap were recorded as well as the statements of petitioners. Dy.S.P. Ghuge had submitted the final report on 8.6.2011. P.W. 10 A.V. Raikar in cross examination denied having knowledge about the complaints against him and Head Constable B.V. Jagtap. Thus, the application was made, but the same came to be rejected. The petitioners want to prove the fact of enquiry by Dy.S.P. Ghuge as according to the petitioners, because of the complaints made, they have been falsely implicated. 4. I have heard counsel for the petitioners and learned A.P.P. for the State. It has been argued for the petitioners that the Court refused to call the witness holding that it was discretionary power of the Court and that the petitioners were protracting. 4. I have heard counsel for the petitioners and learned A.P.P. for the State. It has been argued for the petitioners that the Court refused to call the witness holding that it was discretionary power of the Court and that the petitioners were protracting. Copy of roznama is being pointed out to show that the petitioners did not protract the matter in any manner. The learned counsel for the petitioners submitted that the F.I.R. concerned was filed by Babaji Sambhaji Hawaldar on 20.10.2010 vide Crime No.45/2010 for alleged offence dated 21st /22nd May 2010. Counsel referred to copy of complaint dated 3.8.2010, at Page 59 addressed to the Principal Secretary, Home Department, making grievances against Sambhaji, the father of complainant Babasaheb and against Head Constable Jagtap. Reference was made to Page 64, where the petitioner No.4 had on 11.10.2010 made complaint to the Home Minister against Head Constable Jagtap as well as Sr. P.I. Raikar regarding threats given by Raikar. It is the argument that, thereafter these police officials brought about impugned F.I.R. No.45/2010, which was filed on 20.10.2010 for incident alleged to be on 22.5.2010. Same P.I. Raikar, against whom the petitioners made complaint, went on to investigate the F.I.R. and has also deposed as P.W.10. Argument is that, in the cross examination, this witness went on to deny claiming that he did not know if such complaints were made against him. Thus, it has been submitted that the petitioners wanted to establish as to how false and vexatious prosecution was brought against them taking advantage of the disputes which petitioners had with Sambhaji Hawaldar, the father of complainant with regard to cultivation of land. 5. Petitioners have relied on the case of Rama Paswan & ors. Vs. State of Jharkhand, reported in 2007 Cri.LJ. 2750 to submit that, under Section 311 of the Cr.P.C. the duty is cast on the Court to call witness if interest of justice so requires. Reliance has been placed also on the case of Vijay Kumar Vs. State of U.P. & anr. reported in 2012 Cri.L.J. 305 to submit that the Court can summon a witness for just decision of the case. Reference was made to the matter of Sudevanand Vs. State through C.B.I. etc. etc., reported in 2012 Cri.L.J. 1320. Reliance has been placed also on the case of Vijay Kumar Vs. State of U.P. & anr. reported in 2012 Cri.L.J. 305 to submit that the Court can summon a witness for just decision of the case. Reference was made to the matter of Sudevanand Vs. State through C.B.I. etc. etc., reported in 2012 Cri.L.J. 1320. In that matter, application to summon approver for cross-examination had been rejected although the approver had retracted from his earlier statement incriminating himself and other accused in trial of another case and had made diametrically opposite statements. The High Court had refused to summon the approver for further cross examination. It was found that this was erroneous and liable to be set aside. 6. Reliance has also been placed on the case of Natasha Singh Vs. C.B.I. (State, reported in 2013 (5) SCC (SC) 741. It was observed in para 7 as under: “7. Section 311 Cr.P.C. empowers the Court to summon a material witness, or to examine a person present at “any stage” of “any enquiry”, or “trial”, or “any other proceedings” under the Cr.P.C., or to summon any person as a witness, or to recall and re-examine any person who has already been examined if his evidence appears to it, to be essential to the arrival of a just decision of the case. Undoubtedly, the Cr.P.C. has conferred a very wide discretionary power upon the Court in this respect, but such a discretion is to be exercised judiciously and not arbitrarily. The power of the Court in this context is very wide, and in exercise of the same, it may summon any person as a witness at any stage of the trial, or other proceedings. The Court is competent to exercise such power even suo motu if no such application has been filed by either of the parties. However, the Court must satisfy itself, that it was in fact essential to examine such a witness, or to recall him for further examination in order to arrive at a just decision of the case.” 7. On the basis of above rulings, the learned counsel for petitioners submitted that the Court below had ample powers to call the witness instead of entering into the technicalities that the defence evidence has been closed and thus, the witness may not be now called. 8. On the basis of above rulings, the learned counsel for petitioners submitted that the Court below had ample powers to call the witness instead of entering into the technicalities that the defence evidence has been closed and thus, the witness may not be now called. 8. Learned A.P.P. submitted that, the evidence sought to be brought on record was not relevant and matter had been closed for arguments and the Sessions Court was right in rejecting the application. According to learned A.P.P., if the applicants wanted, they should have stated so in the statement under Section 313 of Cr.P.C. and could have called the witness earlier. 9. Keeping in view principles as laid down by the Hon’ble Supreme Court in the judgments referred above, and the provisions of Section 311 of Cr.P.C., the dominant consideration is, whether the calling of witness was necessary for just decision of the case. For this, it is necessary to consider not merely the case of prosecution but also the defence which was being put up. Copies of evidence of witnesses recorded have been filed. The petitioners have pointed out the copy of F.I.R. (at Page 92) where Babasaheb Hawaldar filed F.I.R. on 20.10.2010 for old incident alleged to be of 22.5.2010 of offence under Sections 363, 366 and 34 of the Indian Penal Code. F.I.R. claimed that the petitioners had instigated daughter of the complainant to elope with accused Deepak Barsakar. In defence evidence, petitioner No.4 has referred to the earlier disputes with Sambhaji Hawaldar, the father of complainant Babasaheb and as to how on 26.6.2010 her mother filed complaint, in which the Head Constable Jagtap did not take action and thus, the petitioner No.4 had made complaint against the Head Constable B.V. Jagtap. Her evidence further shows that petitioner No.4 was pursuing the matter against Head Constable B.V. Jagtap with higher authorities and how when she was pursuing the mater, on subsequent occasion, A.V. Raikar threatened her and she filed complaint even against Raikar. The F.I.R. in dispute appears to have been filed subsequently. Her evidence further shows that petitioner No.4 was pursuing the matter against Head Constable B.V. Jagtap with higher authorities and how when she was pursuing the mater, on subsequent occasion, A.V. Raikar threatened her and she filed complaint even against Raikar. The F.I.R. in dispute appears to have been filed subsequently. When P.W.10 Raikar had conducted investigation in the offence, and the petitioners have pointed out that before registration of the offence itself, the petitioners had made complaint against this P.I. Raikar and defence is raised that false case is brought about, the complaints filed earlier become relevant fact and even if the petitioners earlier closed their evidence, for just decision of the matter, looking to the present case, it was necessary to call the witness. This can be held keeping in view observations of the Hon’ble Supreme Court referred above and provisions of Section 311 of Cr.P.C. I have gone through the impugned order. While rejecting the application, the Court simply referred to submissions made and the stage of proceeding and the Sessions Judge claimed that, under Section 311 the discretion is left with the Court. The Court observed that, it was not a bonafide and genuine application and rejected the same. Whether or not the evidence sought to be brought was relevant, does not appear to have been examined by the Court. For the above reasons, the order passed by the Sessions Court does not appear to be correct, legal and proper. 10. The present revision application is allowed. The impugned order dated 13.1.2014, passed below Exh. 83 in Sessions Case no.12/2013 (State Vs. Deepak & others) is quashed and set aside. Dy. S.P. Anil P. Ghuge shall be summoned as per Section 311 of Cr.P.C. and examined. The witness to produce the documents, as mentioned in para 6 of the application Exh.83, while coming for recording his evidence. This Revision is disposed with directions as above.