SURESH SHANKAR KULKARNI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) By this writ petition, the petitioner has sought an order quashing the process issued against him in criminal complaint No.50 of 1997 pending aagainst him before the JMFC, Phlaton. The order of the III Additional District Judge, Satara confirming the order issuing process against the petitioner has also been challenged.

(2.) The facts giving rise to the present petition are as follows:

(3.) Mr.Moray, appearing for the petitioner at the outset pointed out that although it was the case of the complainant that the second report submitted by Respondent Nos.2 to 4 in Court was forged and fabricated, no process was issued against Respondent Nos.3 and 4 and in fact their appeal against the order in the preliminary enquiry was allowed. Thus, there is no case against Respondent Nos.3 and 4 for the fabrication and submitting of false evidence. The learned advocate then submits that the preliminary enquiry could have been held by the JMFC, Phalton only in accordance with the provisions of the CrPC. He points out that the procedure adopted by the JMFC was wholly incorrect and illegal and has resulted in grave injustice to the petitioner. He submits that the petitioner's fundamental rights guaranteed by Articles 20 and 21 of the Constitution of India hae been violated since a statement of the accused cannot be recorded after administering him oath. Even when the statement of the accused is recorded u/s 313 of the CrPC, no oath can be administered to the accused when he is examined under that section, submits the learned counsel. Apart from this, the learned advocate draws my attention to the Oaths Act under which subsection (2) of Section 4 provides that no oath can be administered to an accused in a criminal proceeding unless he is examined as a witness for the defence. The learned advocate submits that the incorrect and irregular procedure adopted by the learned JMFC, Phalton of administering oath to the Petitioner and examining him in Court, has resulted in miscarriage of justice due to which he is requried to face a criminal trial.