RAMESHWAR BHAGWAT DHAWAD Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) BY invoking the jurisdiction of this Court under section 482 of the Criminal Procedure Code, the petitioner-accused has challenged the order dated 1-1-2002 passed by the learned Additional Sessions Judge in criminal Revision Application No. 388/2001. whereby the revision came to be dismissed being not maintainable and the order dated 16-10-2001 passed by the Judicial Magistrate, First Class rejecting the application for recalling the witnesses for cross-examination under section 311 of the Criminal Procedure code was confirmed.

(2.) BRIEF facts are as under: the petitioner-accused has been prosecuted for the offence punishable under sections 294 and 506 of the Indian Penal Code before the learned j. M. F. C. in Criminal Case No. 340/2000. He engaged Advocate Shri S. V. Deshmukh for the purpose of getting bail. The criminal case was fixed for recording of the evidence of the prosecution witnesses on 6-9-2001. Two prosecution witnesses; namely Bhimrao (P. W. 1) and Dilip (P. W. 2) were present. Their examination-in-chief was recorded on that day. The learned Counsel appearing for the accused was not present as he was engaged in some other courts on that date. The accused was present, but no opportunity for cross-examination of the witnesses was given. The criminal case was posted for recording of further evidence on 20-9-2001, on which date the accused moved an application (Exh. 13) under section 311 of the Code of Criminal Procedure for recalling of the witnesses for cross-examination and this application came to be rejected by the learned Magistrate on 16-10-2001. Being aggrieved by this order, the accused preferred Criminal Revision No. 388/2001 in the Sessions Court and the learned Additional Sessions Judge by his order dated 1-1-2001 dismissed the said criminal revision being not maintainable against the interlocutory order. This order passed by the learned Sessions Judge is challenged in this petition,

(3.) MR. Malode, the learned Counsel for the accused contended that the accused was present in the Court on 6-9-2001 but his Counsel was not available for taking cross-examination of two witnesses namely; Bhimrao (P. W. 1)and Dilip (P. W. 2 ). The learned Magistrate simply mentioned in the deposition of the witnesses that accused persons have declined to cross-examine the witnesses and subsequently these words were scored out. He contended that the courts below have violated the principles of natural justice since the opportunity for cross-examination of the prosecution witnesses has not been given and the case has been closed for recording the evidence of further witnesses. He contended that for the just decision of the case, it was utmost necessary to recall both the prosecution witnesses under section 311 of the code and the courts below have failed to exercise their power under this provision of law and the impugned order therefore has resulted into miscarriage of justice. If the accused is not allowed to cross-examine the witnesses of the prosecution, a great prejudicewould be caused and the procedure adopted by the Magistrate cannot be sustained in law. He contended that the impugned order passed by the Revisional Court is equally unsustainable. He contended that the order refusing to call prosecution witnesses for cross-examination was not an interlocutory order and therefore, the impugned order has resulted into serious miscarriage of justice and deserves to be set aside. He further contended that the interest of justice requires that the accused persons be kindly allowed to cross-examine the prosecution witnesses. In support of these submissions, he relied on the decision of the Himachal Pradesh High Court in the case of (Dwarka Dass v. State of H. P,), 1980 Cri. L. J. 1018.