SUBHASH MUKTYARSINGH MORE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Heard finally by consent of the learned counsel for the applicants and learned Additional Public Prosecutor for the respondent/State. Applicants are facing trial for the offences punishable under Sections 353, 323, 504 and 506 read with Section 34 of Indian Penal Code in the Court of Judicial Magistrate First Class, Motala in Buldhana district.

(2.) Applicants feel aggrieved by the order dated 17th October 2012. The said order was passed below the application filed by the applicants for recalling the witness Sanjay Prakash examined on behalf of the prosecution. This witness was examined on 28th June 2012. The applicants were absent. Their Advocate also did not cooperate with the Court and, therefore, the Court had recorded evidence of the witness in view of the proviso (c) to Sub-section (2) of Section 309 of Criminal Procedure Code. The application for recalling of witness was submitted on 23rd July 2012. The order impugned in the present Writ Petition was passed on 17th October 2012. Learned trial Court has taken the view that the applicants were deliberately trying to delay the trial. The view taken by the learned trial Court might be correct. However, at the same time learned trial Court should have realised that the evidence of witness without cross examination could have created problems in further stages of trial and even after conclusion of the trial. The provision is made in Section 309 of Criminal Procedure Code to record the evidence of witnesses in the absence of accused or the Advocate for the accused to avoid delay in disposal of cases where the accused are adopting delaying tactics. The proviso is not to be used in such a liberal manner. In normal course the procedure laid down for examination of witnesses i.e. examination-in-chief, cross examination and re-examination is to be followed.

(3.) In the present case, what is pertinent to note is that the order directing recording of evidence under proviso (c) to Sub-section (2) of Section 309 of Criminal Procedure Code was passed on 28th June 2012. The applicants moved the Court for recalling of witness on 23rd July 2012 i.e. after one month of the order and recording of evidence. What is further pertinent to note is that the order rejecting the said application dated 23rd July 2012 came to be passed on 17th October 2012. As such three months were consumed for deciding the application for recalling of the witness. If the Court was not able to decide such a minor prayer of accused for about three months, there was no reason to be so hasty in recording the evidence of witness in the absence of the accused.