NANDLAL Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS revision petition under sections 397 read with section 401 of the Criminal Procedure Code ('The Code' in brief) is directed against the order dated 20th September, 2004, passed by III Additional Sessions Judge, Chhindwara, in Sessions Trial No. 237/96, whereby the expenses for recalling of witness was directed to be deposited by applicants.

(2.) BRIEF facts which are necessary for disposal of this revision petition are like that, the trial u/Ss. 302, 376(2) (g) and 201 read with section 34 of Indian Penal Code (for short 'IPC') was pending and in its earlier stage one prosecution witness, regarding expert report of DNA test, Doctor G.V. Rao (PW 58) was examined, cross -examined and discharged but some of the documents in regard to said report were not submitted either by prosecution or by this witness at earlier stage of examination. Then an application u/s 91 of the Code was submitted by the applicants for calling all those documents, same was dismissed by the trial Court after which revision before this Court was preferred in which the order was set aside and remitted back to trial Court for deciding afresh, which again dismissed, the same, the applicants again filed Criminal Revision No. 1184/04 before this Court which was also dismissed on 30.1.2003, then the matter went up to the Supreme Court by Special Leave Appeal (Criminal) No. 691/03, in which the fo11owing order was passed :

(3.) WHILE the prosecution was directed to submit documents as they are related with the said report and witness. Dr. G.V. Rao, then defence was entitled to cross -examine this witness again in view of said documents and with this prayer, application u/s 311 of Code was submitted. This application was considered and allowed at earlier stage before passing the impugned order as appears from the order itself, and as directed the said witness did not appear inspite of intimation as per prescribed procedure and it was also reported before the trial Court that due to conviction in a criminal matter, the said witness had been dismissed or terminated or discontinued from that laboratory or office and is not available as regular employee and when he was called by the Court through process for his further cross -examination then he sent some message to the Court that subject to payment of Rs. 12,000/as T A, DA he would appear for further cross -examination.