ASHOK MAHADU DEVARE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Heard. By consent, the rule is made returnable forthwith.

(2.) The petitioners challenge the order passed by the Additional Sessions judge, Kalyan, directing the Ld. Magistrate to record evidence of the complainant, even though the statement of the accused under section 313 of Criminal Procedure Code, 1973, was already recorded.

(3.) The petitioners are the accused in the Criminal Case No. 164 of 1995 being prosecuted under Section 325 read with 506 of the Indian Penal Code. The charges in the case were framed on 30th September, 1998. The first prosecution witness was examined on 6th January, 1999 followed by three other witnesses, the last such witness having been examined by 26th April, 2000 and thereafter, the matter was adjourned from time to time to enable the other witnesses including the complainant to be examined. However, the prosecution failed to secure the presence of the complainant in the Court for his examination. On 6th September, 2000, the ld. Magistrate by his order, while observing that sufficient opportunity was given to the prosecution to produce the evidence of the complainant, directed the prosecution to keep the complainant present. Summons was issued time and again to the complainant and under the report dated 3rd October, 2000, the police informed the Ld. Magistrate about the service of the summons upon the complainant. The complainant however failed to appear in the Court, inspite of repeated summons issued to him. It is the contention of the petitioners that the last such summons issued to him, was refused to be accepted by the complainant and the said fact was narrated by the prosecution itself in its application exhibit-46 and therefore non-bailable warrant was prayed for. The said application was rejected by the Learned Magistrate under order dated 8th November, 2000. The said order was not challenged by the prosecution and the matter proceeded for recording of statement under Section 313 of the Code of criminal Procedure, 1973. On 15th March, 2001, the matter was posted for argument on which day, without any summons, the complainant appeared before the Learned magistrate and the prosecution applied leave to examine the complainant present in the court which was rejected by the Learned magistrate. Being aggrieved, the prosecution filed Revision Application before the Sessions court, Kalyan, being Criminal Revision application No. 25 of 2001 and the Additional sessions Judge by order dated 22nd June, 2003 allowed the said application, while setting aside the order of the Ld. Magistrate and directed the Ld. Magistrate to examine the complainant. Hence, the present Petition.