Judgment
apl739.17 4
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPLICATION (APL) NO.739 OF 2017
Ratan s/o Dashrath Kiratkar,
Aged about 54 years,
Occupation Service,
R/o Quarter No.237, Nikat Police
Line, Akola, Tahsil and District
Akola. ..... Applicant.
:: VERSUS ::
The State of Maharashtra,
Through Anti Corruption Bureau,
Akola. ..... Non-applicant.
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Shri S.V. Sirpurkar, Counsel for the applicant.
Mrs. Geeta Tiwari, Addl.P.P. for the State.
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CORAM : V.M. DESHPANDE, J.
DATE : DECEMBER 15, 2017. ORAL JUDGMENT 1. Rule. Rule made returnable forthwith. Heard
finally by consent of learned counsel Shri S.V. Sirpurkar for the applicant and learned Additional Public Prosecutor Mrs. .....2/-
::: Uploaded on - 19/12/2017 ::: Downloaded on - 23/12/2017 01:08:13 ::: Judgment apl739.17 4 2 Geeta Tiwari for the State.
2. The present applicant was shown as an accused in Special (ACB) Case No.6 of 2005. The charge-sheet was filed in the year 2005. The Trial commenced in the year 2016. During the course of the Trial, on 31.7.2017 learned Special Judge (ACB) at Akola passed order below Exhibit-1 when an application for adjournment was moved on behalf of the prosecution without assigning any reason for the same. Consequently, learned Special Judge ordered that the case be placed for recording statements of accused persons.
3. Subsequent to the said, on 17.8.2017, application Exhibit 158 was moved by learned Prosecutor who was incharge of the brief. The said application was under Section 311 of the Code of Criminal Procedure for issuance of summonses to the witnesses for recording their evidences.
4. In application Exhibit 158 it was pointed out that .....3/-
::: Uploaded on - 19/12/2017 ::: Downloaded on - 23/12/2017 01:08:13 ::: Judgment apl739.17 4 3 the investigation was carried out by Investigating Officer from the Anti Corruption Bureau at Akola Shri A.H.G. Sheikh and also further investigation was conducted by Shri Y.D. Patil as investigator. In the application, it was stated that Shri Y.D. Patil expired on 6.8.2015 and Shri A.H.G. Sheikh was suffering from Throat Cancer and he was under treatment of Chemotherapy and Radiation and was unable to speak. Further, it was pointed out that Shri A.H.G. Sheikh was suffering from Kidney and Spinal disability and also was unable to move. It was also pointed out that Shri A.H.G. Sheikh has given about his medical condition along with medical papers which were filed on record. In the circumstances, it was prayed by the prosecution that the writers, who were working with Shri Y.D. Patil and Shri A.H.G. Sheikh, be permitted to lead evidence on behalf of the prosecution. Their names were also mentioned in the .....4/-
::: Uploaded on - 19/12/2017 ::: Downloaded on - 23/12/2017 01:08:13 ::: Judgment apl739.17 4 4 application.
5. There were two accused persons. Accused No.1 has given no objection for the said application. However, accused No.2 i.e. the present applicant has objected the said application. The main crux of the application and also it could be seen from the submissions advanced before this Court by learned counsel for the applicant that his prior application Exhibit 127 was rejected by learned Judge and, therefore, there should not be a different treatment to the prosecution. The prosecution should be given the same treatment which was meted out to the present applicant.
6. Learned Judge on 14.9.2017 allowed the applications and directed that the witness summonses be issued to the witnesses whose names are stated in Exhibit 168.
7. In my view, learned Judge has rightly allowed the applications and has rightly directed for issuance of the .....5/-
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8. The power of the Court under Section 311 of the Code of Criminal Procedure is wide. The Court has all power at any stage of the Trial to summon any person as a witness or to examine any person in attendance, though not summoned as a witness or can recall or re-examine any person already examined if it appears to the Court that it is essential for the just decision of the case.
9. In the present case, it appears that the prosecution was handicapped in not producing the investigating officers. It is to be noted that the applicant is facing the charge under the Prevention of the Corruption Act, 1988 in which the role of the investigating officers is having its own importance. One investigating officer Shri Y.D. Patil expired. Whereas, another investigating officer Shri A.H.G. Sheikh was suffering from the medical problems as are stated .....6/-
::: Uploaded on - 19/12/2017 ::: Downloaded on - 23/12/2017 01:08:13 ::: Judgment apl739.17 4 6 in foregoing paragraphs. Therefore, it was beyond the control of the prosecution to produce any of the investigating officers to depose before the Court from the witness box. One Shri A.H.G. Sheikh was suffering from Throat Cancer and was under the treatment of Chemotherapy and Radiation.
10. There cannot be any dispute when the statement is made by learned Prosecutor that the said investigating officer is unable to depose. However, for not examining the investigating officers, justice should not be victimized. Therefore, in my view, the prosecution has rightly moved an application for examining the writers of those two investigating officers who were throughout with them and participated in the entire investigation process. Therefore, it is always open for the prosecution to adduce their evidences. What will be the evidentiary value will have to be decided by learned Judge of the Court at the appropriate stage. Further, .....7/-
::: Uploaded on - 19/12/2017 ::: Downloaded on - 23/12/2017 01:08:13 ::: Judgment apl739.17 4 7 they will be available to the present applicant for their cross- examination. Therefore, their cannot be any prejudice to the applicant if he is summoned and examined as a prosecution witness.
11. Consequently, there is no perversity in the order which is impugned before this Court. Hence, the criminal application is rejected. Rule is discharged.
JUDGE !! BRW !! ...../-
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