Chandrakant Shriram Sharma vs State Of Maharashtra
2013 Latest Caselaw 340 Bom

                                  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

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

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.

4 Cri.W.P.873.11.odt

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.

5 Cri.W.P.873.11.odt

7. The Petition is disposed of in the

aforesaid terms.

8. Rule is made absolute accordingly.

Sd/-

( ABHAY M. THIPSAY, J. ) *** sga/-