Bombay High Court
Ranjeetsingh Gulabsingh ... vs The State Of Maharashtra, Through ... on 20 November, 2015
Bench: A.B. Chaudhari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPLICATION (APL) NO.745/2015
1. Ranjeetsingh Gulabsingh Chungade,
aged 62 years, Occ. Busienss
r/o Rajputpura, Akola.
2. Bajrangsingh s/o Sardarsingh Rajut,
aged 58 years, r/o Kholeshwar,
Akola. .....APPLICANTS
...V E R S U S...
The State of Maharashtra, through
its Police Station Officer, Police Station,
Ramdaspeth, Akola. ...NON APPLICANT
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Mr. A. S. Mardikar, Senior Advocate with Mr. S. G. Joshi, Advocate
for applicant.
Mr. Dhumale, A.P.P. for non applicant.
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CORAM:- A. B. CHAUDHARI, J.
DATED :- 20.11.2015
ORAL JUDGMENT
1. Rule. Rule returnable forthwith. Heard finally by
consent of the parties.
2. In a trial which was registered as sessions trial in the
year 2002, several legal filibusters have occurred resulting into
protraction of trial till this date i.e. over a period of 13 years. Now,
in the instant application, there is one more legal filibuster
namely; whether after reconstruction of the record, which was
torn, the reconstructed record would become primary evidence?
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Obviously, it would not. But then the learned trial Judge has held
that the said record reconstructed by the office for want of
evidence would certainly become a primary evidence with which I
do not agree. There is, therefore, merit in the contention of the
learned Senior Counsel for the applicant.
3. It is not in dispute that the prosecution realizing the
difficulty, filed an application Exh.-202 for leading secondary
evidence or rather for permission to lead the secondary evidence.
The grievance made by Mr. Mardikar, learned Senior Counsel was
rejected by the learned trial Judge and held that the reconstructed
record would constitute a primary evidence. Mr. Mardikar then
submitted that order of rejection of Exh.202 has not been
challenged by the prosecution. Therefore, this Court would not be
in a position to deal with the said order on Exh.202.
4. As stated earlier, the trial is of the year 2002 for offence
punishable under Section 307 of the IPC. It is being procrastinated
for one or the other reason for such a long time. It is not that the
applicants are responsible for protraction of the trial but then the
fact remains that the trial is of the year 2002 and must come to an
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end at some point of time. Since I have already held that the
reasons recorded by the learned trial Judge about reconstructed
record becoming a primary evidence is illegal, the necessary
consequence or the sequitur is that the application Exh.202 must
be allowed and in exercise of powers under Section 482 of Cr.P.C.
I hold that the application Exh.202 for leading secondary evidence
is liable to be allowed.
5.
For the reasons given by me above, inter alia, that loss
of Court record and the reconstruction thereof is an act of the
Court; 'actus curiae neminem gravabit', this Court is under a duty
to exercise its inherent power in the interest of justice. That leads
me to pass the following order.
ORDER
(i) Criminal Application No.745/2015 is partly
allowed.
(ii) Impugned order dated 12.08.2015 below
Exh.-183 is set aside and it is held that the
reconstructed record by office of the Court does not
become a primary evidence.
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(iii) Application Exh.-202 for leading secondary
evidence is allowed and it is held that the prosecution
is entitled to lead the secondary evidence on the basis
of permission from this Court.
(iv) The trial shall now recommence and shall
be completed within a period of four months from
today.
JUDGE
kahale
