1 Cri.W.P.873.11.odt
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 873 OF 2011
Chandrakant Shriram Sharma
Age : 59 years, Occ : Advocate,
R/o Pachora, Taluka Pachora,
District Jalgaon.
..PETITIONER
-VERSUS-
1. State of Maharashtra
2.
Vilas C. Jadhav
Age : 53 years, Occ : Service,
R/o Maharashtra Police Academy,
Trambak Road, Nasik,
Taluka & District Nasik.
..RESPONDENTS
...
Advocate for Petitioner : Mr. Suryawanshi Surendra V.
APP for Respondent No.1 : Mr. S.R. Palnitkar
Advocate for Respondent No.2 : Mr. D.B. Thoke
...
CORAM : ABHAY M. THIPSAY, J.
Dated: December 13, 2013 ORAL JUDGMENT :-
Rule. By consent, Rule made returnable forthwith. By consent, heard finally.
2. The petitioner is the complainant in S.C.C. No. 1292/2009 pending before the Judicial ::: Downloaded on - 23/12/2013 20:35:03 ::: 2 Cri.W.P.873.11.odt Magistrate, First Class, Pachora, Dist. Jalgaon.
The trial is in progress. The petitioner made an application (Exhibit 39) before the Magistrate mentioning the names of a number of persons as witnesses and praying that the said persons be summoned as witnesses. The learned Magistrate by his order dated 12.05.2011 allowed the said application only partly. The Magistrate observed that the names of three witnesses out of the names mentioned in the said application (Exhibit 39) were mentioned in the complaint, and therefore, summonses would be issued to only those three witnesses. As regards the other witnesses, the Magistrate observed as follows :
"But the complainant has mentioned more names of witnesses, which are not mentioned in the complaint. Hence without any reason court cannot call any other witness whose name is not mentioned in the complaint. No explanation is there regarding the new names of witnesses."
3. The complainant is aggrieved by the refusal of the Magistrate to summon the other ::: Downloaded on - 23/12/2013 20:35:03 ::: 3 Cri.W.P.873.11.odt witnesses:- i.e. the witnesses whose names have not been mentioned in the complaint. The petitioner had approached the Court of Sessions in Revision, but the Revision application was dismissed by the Additional Sessions Judge, who heard the same.
4. The learned counsel for the parties do not dispute before me that there would be no absolute prohibition in law in summoning the witnesses, who are not mentioned in the list of witnesses annexed to the complaint or the charge sheet, as the case may be. The Court would have discretion to summon the witnesses whose evidence would be relevant. The Magistrate's view also appears to be same, in as much as, he has observed that no explanation in that regard had been given by the petitioner. Thus, it appears that the Magistrate would have considered the reasons and explanation if offered by the petitioner justifying the calling of such witnesses.
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5. The learned counsel for the petitioner submits that the petitioner is ready and willing to give the reasons and justification for summoning such witnesses to the learned Magistrate. Needless to say, that in that event, the learned Magistrate shall be bound to consider the reasons and justification, as may be shown by the petitioner and take an appropriate decision with respect to the summoning of the witnesses mentioned in the application at Exhibit 39, but not named in the original complaint.
6. The Writ Petition is partly allowed.
The petitioner shall be permitted to apply afresh before the Magistrate seeking summoning of the witnesses in question, mentioning the reasons and the justification for calling the witnesses. On such application being made, the learned Magistrate shall hear the petitioner, and consider the matter afresh-on merits and in accordance with law.
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7. The Petition is disposed of in the aforesaid terms.
8. Rule is made absolute accordingly.
Sd/-
( ABHAY M. THIPSAY, J. ) *** sga/-
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