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2021 DIGILAW 167 (BOM)

Anne Messias Gomes v. State Of Goa

2021-01-25

M.S.JAWALKAR

body2021
JUDGMENT M S Jawalkar, J. - The present Petition is filed challenging the legality and propriety of the impugned order dated 10.02.2020 in Criminal Case No. 102/S/2016/B passed by the Judicial Magistrate First Class at Vasco da Gama, Goa. 2. The petitioner submits that he is accused in the above criminal proceeding for having committed offence under Sections 279 and 337 of IPC. The applicant moved an application under Section 311 of Cr.P.C. for recalling the complainant as there is a previous statement made in the claim petition on oath, which was contradicting his statement before the learned JMFC, Vasco. The said application dated 25.07.2019 was withdrawn by the petitioner and another application dated 11.11.2019 was moved under Section 311 of Cr.P.C. to re-examine the complainant as defence witness and to produce documents in support of her case. However, re-examination was not pressed. 3. Thereafter, the petitioner moved an application under Section 315 of Cr.P.C. to allow to examine herself in defence, which was allowed. While her chief examination was going on, she filed application dated 23.01.2020. The said application dated 23.01.2020 came to be dismissed. 4. The learned Counsel for the petitioner submitted that the order is illegal. By denying production of documents, the Trial Court had denied the opportunity of leading proper defence. It is further contended that the examination of chief (accused) was not concluded. It is submitted that the finding of the Court that the petitioner had not or was not intending to produce the documents earlier allowed by the Court, is bad in law. The learned JMFC erred in finding that the petitioner had not stated the relevancy of the documents, specially when, relevancy can be seen while marshalling the evidence and not at the stage of production of the documents. It is submitted that the petitioner wants to bring on record contradictory statements of the complainant, which are made in the claim petition and in the criminal proceedings, specifically when, both the proceedings are the result of one incident. These statements create doubt in the version of the prosecution. It is submitted that the statements of the complainant before the Claims Tribunal was on oath and therefore, it can be relied on. These statements create doubt in the version of the prosecution. It is submitted that the statements of the complainant before the Claims Tribunal was on oath and therefore, it can be relied on. Further it is submitted that there was no intention at all to delay the matter and that for last two years there was no Presiding Officer, which fact was not considered by the Trial Court. 5. In reply, Mr. Mahesh Amonkar, the learned Additional Public Prosecutor for the State submitted that the order is justified. It is submitted that it is the abuse of the process of law. It is submitted that the earlier application filed by the accused, though allowed by the Court, instead of producing those documents, filed another application without giving any proper justification or statement stating the relevancy of those documents to the charges of rash and negligent driving by the accused. 6. The learned JMFC dismissed the said application in view of the ground that the accused cannot rely upon the documents in claim petition to prove her innocence as the proceedings before the learned Judge is a criminal proceedings. Secondly, the matter has been delayed and dragged by the accused and the Advocate appearing for the accused, by applying and withdrawing the applications, causing inconvenience to the Court, party and the prosecution. Moreover, there is no whisper of the relevancy of the documents and how the said documents would come to rescue to absolve her from the charges of rash and negligent driving and accordingly, the application was dismissed. 7. I have called for the Record & Proceedings and perused the same. There is no dispute that the accused examined herself as defence witness and her chief was yet to be completed. It is true that all the documents are not relevant in the criminal proceedings, however, these documents i.e. the affidavit in evidence and deposition of the complainant in Claim Petition No. 109/2015/MACT-II before the learned District and Sessions Judge, Margao is prima facie relevant as it might support the case of the accused to prove the innocence. In so far as the other documents are concerned, I do not see any reason to allow those documents to be produced on record as they do not in any way assist to prove the fact as to the rash and negligent driving of the accused or the innocence of the accused. In so far as the other documents are concerned, I do not see any reason to allow those documents to be produced on record as they do not in any way assist to prove the fact as to the rash and negligent driving of the accused or the innocence of the accused. Injury certificate is already there on record. The attending Doctor is also examined by the prosecution and therefore, there is no need to place on record the other documents which relates to the claim of compensation due to injury to the claimant. As there is no charge for driving without license, no purpose would be served by producing the driving license on record. Accordingly, I proceed to pass the following order: ORDER (a) The application is partly allowed. (b) The order passed by the learned Trial Court dated 10.02.2020 below Exhibit D-36 is modified in the term that the application of the accused is allowed to the extent of producing the affidavit in evidence and deposition of the complainant in Claim Petition No. 109/2015/MACT-II before the learned District and Sessions Judge, Margao. (c) No order as to costs.