Bombay High Court
Ajay Rajaram Kohare vs The State Of Maharashtra, Thr. Its ... on 26 July, 2016
Bench: S.B. Shukre
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL WRIT PETITION No.291 OF 2016
Ajay Rajaram Kohare,
Aged about 34 years,
Occupation : Pvt. Service,
R/o. Renuka Layout, Dabki Road, Akola,
Old City Akola, Tq. And Distt. Akola. : PETITIONER
...VERSUS...
The State of Maharashtra,
through its Police Station Officer,
Gadge Nagar, Amravati,
Tq. and Distt. Amravati. : RESPONDENT
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Shri P.S. Patil, Advocate for the Petitioner.
Smt. Mayuri Deshmukh, Addl. Public Prosecutor for the Respondent.
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CORAM : S.B. SHUKRE, J.
th
DATE : 26
JULY, 2016.
ORAL JUDGMENT :
1. Rule. Rule made returnable forthwith.
2. Heard finally by consent of learned counsel appearing for
the parties.
3. It is seen from the paper book of this writ petition that the
application for recalling of prosecution witnesses PW 1 and PW 2 has
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been filed after 15 days of the closure of the evidence of these witnesses
or in other words almost on the earliest available opportunity and that
prosecution evidence at that time was still under way. In these
circumstances, it could not be said that the application, vide Exh.-73, was
filed by the petitioner with a view to protract the trial. No doubt, the
petitioner did have the opportunity to prove the improvements or the
omissions by cross-examining these witnesses. But, the petitioner, I must
say, has also admitted that failure to bring to the notice of these
witnesses some of the improvements or omissions made by them was
owing to inadvertence and nothing more or nothing less. So, this is not a
case wherein the petitioner is misleading the Court or having some
hidden agenda, rather, he is approaching the Court with clean hands
with a request for exercising discretion in his favour. In such a case, the
discretion, in my view, deserved to be exercised in favour of the
petitioner, if it could be seen that there were no malafides on the part of
the petitioner and no prejudice would be caused to the prosecution. I
have already made myself clear on the aspect of malafides by observing
that the petitioner has plainly admitted the mistake committed by him.
So far as causing of prejudice to the prosecution is concerned, I do not
see it either as the prosecution evidence is yet to be closed.
4. In the result, the writ petition deserves to be allowed and it is
allowed accordingly.
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5. The impugned order dated 20.11.2014, passed by the District
and Sessions Judge, Amravti below Exh.-73 is hereby quashed and set
aside.
6. The application vide Exh.-73 is allowed.
7. PW 1 and PW 2, the prosecution witnesses be recalled for the
limited purpose of proving the improvements or omissions or
contradictions by inviting their attention to the relevant portions of their
statements and the prosecution shall also be given an opportunity for
re-examining the witnesses, if a request is made in that regard, in
accordance with law.
8. Rule is made absolute in these terms.
JUDGE
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