ANITA KESHAV PARAB Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) BY this petition which is filed by the petitioners under Articles 226 and 227 of the Constitution of India, the petitioners are challenging the impugned orders passed by the Additional Sessions judge, Mapusa, whereby their application for seeking examination of defence witnesses was rejected by the learned Sessions Judge.

(2.) BRIEF facts which are necessary for the purpose of deciding this petition are as under:-The petitioners are original accused in Sessions Case No. 11/2001 which is pending in the Court of the Additional Sessions Judge, Mapusa. The petitioners are facing trial under sections 143, 147, 148, 427, 327, 326 and 307 read with section 149 of the Indian Penal Code. The statements of the petitioners under section 313 of the Cri. P. C. was recorded on 28-7-2004. Thereafter the petitioners disclosed their intention to examine defence witnesses. Accordingly an application was made and a list of 24 witnesses was submitted by the accused. The trial Court allowed the petitioners to examine these witnesses and issued summons to four witnesses. Accordingly, petitioners examined Clayton fernandes as defence witness. Further Police Officer Rane was also examined on 2-3-05. Two witnesses namely Parshuram gharde and Salim Ramjan Nadaf could not be served and therefore the petitioners furnished the new address of the witnesses and requested the Additional Sessions judge to issue fresh summons. However, this application was dismissed by the Additional Sessions Judge by order dated 6-4-05 the petitioners also had made a further application for issuing summons to the other witnesses which were mentioned in the list of witnesses, who were allowed to be examined by the Additional Sessions judge by his order dated 4-10-04. The learned Sessions Judge dismissed this application by order dated 11-4-05. The petitioners are challenging both these orders dated 6-4-05 and 11-4-05. It is submitted by the learned Counsel appearing on behalf of the petitioners that it is the petitioners' right to examine defence witnesses. He further submitted that the petitioners right to a fair trial is denied by not permitting them to examine their defence witnesses and therefore the impugned order is violative of Article 21 of the Constitution and is in breach of the principle of natural justice. The learned Counsel further submitted that the Additional Sessions Judge had misconstrued the order of the High court in Writ Petition No. 1/2005 wherein the High Court had disallowed the prayer of the petitioners to refer the disputed handwriting to an expert for the purpose of obtaining his opinion. It was submitted that the said order was passed in a different set of circumstances. He submitted that though his application for obtaining opinion from the handwriting expert was declined, the accused always had a right to examine a handwriting expert in support of his case.

(3.) THE learned Counsel appearing on behalf of the State, opposed the submission of the learned Counsel appearing on behalf of the petitioners. She submitted that the Sessions Court had observed that the petitioners were trying to delay and protract the trial by examining the witnesses whose testimony was absolutely irrelevant to disprove the prosecution case. She submitted that by virtue of section 136 of the Evidence act the Judge had discretion whether to allow the examination of a witness or not after taking into consideration the relevancy of the facts which the witnesses, if examined, would prove. She has filed a detailed affidavit stating as to how the examination of the witnesses mentioned in the list submitted by the petitioners would be irrelevant for the purpose of the trial.