Dhondiba vs The State Of Maharashtra
2012 Latest Caselaw 253 Bom

                                      1                   Criwp. No.473/10

                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                                BENCH AT AURANGABAD




                                                                      
                                              
                   CRIMINAL WRIT PETITION NO.473 OF 2010



     1.       Dhondiba s/o Namdeo Dhonde,




                                             
              Aged 55 yrs, Occ.Service,
              R/o & Tq. Ashti, Dist. Beed

     2.       Kusumbai w/o Dhondiba Dhonde,
              Aged 50 yrs, Occ.Nil,




                                   
              R/o & Tq. Ashti, Dist. Beed              ..PETITIONERS


              VERSUS
                       
                      
              The State of Maharashtra                 ..RESPONDENT


     Mr G.K. Thigle, Advocate for the petitioners;
     Mr G.R. Ingole, A.P.P. for the respondent
      


      
   



                              CORAM :  A.H. JOSHI, J.

DATE : October 22, 2012

ORAL JUDGMENT :

1. Rule. Rule is made returnable forthwith and is heard by consent.

2. Heard. Perused petition and the annexures.

3. The petitioners are accused in a trial for

offence under Prevention of Corruption Act, 1988 for

possessing dis-proportionate assets. They have filed

application before learned Special Judge, praying that

the Court may direct that the prosecution should

produce certain documents which relate to certain

enquiries prior to first information report and those

have been referred to in the charge-sheet and pertain

to same fact of matter. Second prayer is for calling

the witness.

4.

This Court asked learned Advocate for the

petitioners following questions:-

(a) Is the evidence of prosecution closed ?

(b) Was the application under section 311 of

the Code of Criminal Procedure filed after the defence had to begin its evidence?

5. Learned Advocate for the petitioners' reply to

questions asked by this Court is as follows :-

(a) question(a) : The evidence of prosecution is

not closed.

(b) question(b) : The defence evidence has not begun.

6. Sufficiency and adequacy of evidence to be

brought by the prosecution is a matter of choice,

decision, discretion and prerogative of the

prosecution.

7. It may happen that the prosecution may bring the

evidence half heartedly or with incomplete or

inadequate or even not conforming to the sequence of

events.

8. If any such deficiency is left by the prosecution

and/or incomplete evidence is brought,by the

prosecution, it is a matter of the right, skill and

art available at the command of the defence to

question the worthyness of the evidence tendered by

prosecution in such deficient manner.

9. Even otherwise, benefit of any such deficiency

depending upon its value and nature would always go in

favour of accused.

10. If the prosecution does not want to rely on

certain documents, it is prosecution's prerogative to

omit to produce or call these documents.

11. The accused has no right to call for production

of documents which accused believe that the

prosecution should have produced, so long evidence

relied upon the prosecution is being produced, except

for the purposes of cross-examination.

12. Therefore, the accused have no say in this matter

whatsoever to urge that prosecution ought to have

produced certain evidence, but did not, cannot be a

ground to invoke inherent power of court under Section

311 of Cr.P.C.

13. If at all the accused desire that these documents

and witnesses are to be cited as defence witnesses

and to be called, a stage thereof would come at

appropriate time/stage in the trial i.e. after

prosecution closes its evidence. This right of the

accused and the stage is yet to accrue.

14. Section 311 of the Code of Criminal Procedure is

a device or path finder for a party, either the

prosecution or defence whosoever, who is leading the

evidence for invoking inherent jurisdiction of the

court and not a device of traverse for a party who is

yet to begin its evidence.

15. However on facts of present case, ostensibly an

application of present nature is vexatious, and aimed

at stalling the trial. It may be that due to sheer

scare, the accused appear to be under belief that they

would more comfortable if for one or other reason, the

trial is stalled.

16.

It is evident that in present case, section 311

is sought to be invoked and is brought to abuse than

its due and reasonable recourse. The application

purportedly under section 311 of the Code of Criminal

Procedure was filed mostly, as a device of stalling

the trial. The trial pertains to year 2000 and the

event is far older. Filing of such applications is

ostensibly evident as to its object and intent.

17. The application totally lacks the bonafides.

Therefore, no interference is called for. Petition is

dismissed. Rule is discharged.

(A.H. JOSHI, J.)

amj/criwp473.10