Ahmedkhan Alamkhan Pathan vs The State Of Mah And Ors
2016 Latest Caselaw 6669 Bom

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                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              BENCH AT AURANGABAD




                                                       
                       CRIMINAL WRIT PETITION NO. 167 OF 2007



     Ahmedkhan S/o Alamkhan Pathan,




                                                      
     Age. 33 years, Occu. Agri. and
     Private Service, R/o. Wadhwana (Bk),
     Tq. Udgir, Dist. Latur, at present
     R/o. Aurad (B), Tq. Aurad (B),
     Dist. Bidar, (Karnataka)                                   ....Petitioner




                                         
     Versus                  
     1.       The State of Maharashtra.

     2.       Alamkhan s/o Sarwarkhan Pathan.
                            
              Age. 60 years, Occu. Agril.,

     3.       Younuskhan S/o Alamkhan Pathan,
              Age. 22 years, Occu. Agril.,
      


              Respondent No. 2 & 3 both R/o.
              Wadhwana (Bk), Tq. Udgir, Dist. Latur.            ....Respondents
   



                                            ...
                        Advocate for Petitioner : Mr. P G Rodge
                       APP for Respondent No.1: Mr. A.R. Kale





                 Advocate for Respondents 2 and 3 : Mr. Satej S. Jadhav
                                           .....

                                                CORAM : V. K. JADHAV, J.

DATED : 24th NOVEMBER, 2016

ORAL JUDGMENT:-

1. Being aggrieved by the judgment and order passed by the

Additional Sessions Judge, Udgir, dated 29.3.2006 in criminal

revision petition No. 5 of 2006, the original complainant has preferred

this writ petition.

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2. Brief facts, giving rise to the present writ petition, are as

follows:-

a) The petitioner original complainant has lodged a complaint at

police station Udgir on 26.10.1999 against his own father and step

brother, alleging therein that they have committed offence of forgery

and cheating by personation, by executing sale deed of land bearing

survey No. 52/2 i.e Gat No. 27, admeasuring 0.82 R, situated at

village Dangewadi, (Wadhwana), owned and possessed by him. It

has further alleged in the complaint that on 17.2.1999, the father of

the complainant, respondent No.2 herein, had executed sale deed of

his land by personation, in favour of his step brother i.e. respondent

No.3 herein. On the basis of said complaint, crime No. 95 of 1999

came to be registered with Udgir (Rural) police station, for the

offences punishable under Sections 420, 467, 468 r.w. 34 of I.P.C.

and after due investigation, charge sheet was submitted before

J.M.F.C. Udgir.

b) The learned Magistrate, Udgir has framed charge against both

the accused for having committed offences punishable under

sections 420, 467, 468 r.w. 34 of I.P.C. to which both of them

pleaded not guilty and claimed to be tried. Thereafter, the trial was

commenced and learned A.P.P. had examined the petitioner

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complainant before the Magistrate, as P.W.1 at Exh.30 on 13.4.2005.

He was also subjected to cross examination by the accused. His

evidence was closed on that day itself. On 24.8.2005, the petitioner

complainant had filed an application Exh.36 through A.P.P. before

the Magistrate under section 311 of Cr.P.C. for recalling himself for

re-examination and cross examination, if any. Learned Magistrate,

by his order dated 2.2.2006, below Exh.36 allowed the said

application. Being aggrieved by the same, respondent Nos. 2 and 3

original accused preferred criminal revision petition No. 5 of 2006

before the Sessions Court, Ahmednagar and the learned Additional

Sessions Judge, Udgir by his impugned judgment and order dated

29.3.2006, allowed the revision petition, thereby quashed and set

aside the order passed by the Magistrate, dated 2.2.2006, below

Exh.36 in R.C.C. No. 431 of 1999. Hence, this criminal writ petition.

3. Learned counsel for the petitioner submits that the petitioner

complainant has acquired the land survey No. 52/2 block No. 27

situated at village Dangewadi to the extent of 0.82 R from his own

earnings. However, the father of complainant (accused No.1) and

his step brother (accused No.2) have committed offence of forgery

and cheating by personation, by executing sale deed in respect of

the said land. Furthermore, the petitioner complainant had instituted

R.C.S. No. 242 of 1999 against respondent Nos. 2 and 3 herein in

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respect of the said land for declaration about the said sale deed and

also for decree of perpetual injunction. Learned counsel submits that

upon due intervention of panchas in the village, the petitioner,

original complainant, considering the relations, compromised the

dispute. Accordingly, the compromise was effected in the said suit,

wherein respondent Nos. 2 and 3 agreed to re-convey the sale deed

in favour of the petitioner complainant and also agreed not to cause

obstruction to his peaceful possession over the suit land.

4. Learned counsel for the petitioner submits that thereafter,

respondent Nos. 2 and 3 original accused persuaded the petitioner

complainant to depose in the Court in criminal matter in their favour.

Though the parties have filed an application before the Court Exh.28

to compound the matter, learned Magistrate has rejected the said

application, as the offence was non compoundable. Learned counsel

submits that accordingly the petitioner complainant has deposed in

favour of respondent Nos. 2 and 3 accused, as the matter was

compromised between them. However, respondent Nos. 2 and 3

original accused refused to obey the compromise decree in terms of

its conditions. Even the learned A.P.P. before the court below has

not cross examined the petitioner complainant on account of

compromise effected between the parties.

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5. Learned counsel submits that the petitioner original

complainant should not suffer any loss on account of subsequent

acts done by respondent Nos. 2 and 3 original accused. Learned

counsel submits that powers under Section 311 of Cr.P.C. required

to be invoked if exigency of justice is required. In the instant case,

the petitioner complainant was cheated by respondent No.3 original

accused and even though compromise was effected in the civil

litigation failed to obey the terms and conditions of compromise.

Learned counsel submits that if the petitioner complainant is not

recalled for his re-examination, the truth will not come before the

Court and the respondent accused will get the benefit of their own

wrong. Learned counsel submits that the learned Magistrate has

rightly allowed the application. However, learned Additional Sessions

Judge, without application of mind erroneously passed the impugned

order by setting aside the well reasoned order passed by the

Magistrate.

Learned counsel for the petitioner in order to substantiate his

contentions, placed reliance on the judgment of Supreme Court in

the case of Mohanlal Shamji Soni vs. Union of India and another,

reported in AIR 1991 SC 1346, wherein in para 9 of the judgment,

the Supreme Court has made following observations:-

"9. The very usage of the words such as, any Court 'at any

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stage', or 'of any enquiry, trial or other proceedings'. 'any'

person' and any such person' clearly spells out that this section is expressed in the widest possible terms and do not

limit the discretion of the Court in any way. However, the very width requires a corresponding caution that the discretionary power should be invoked as the exigencies of justice require

and exercised judicially with circumspection and consistently with the provisions of the Code. The second part of the Section does not allow for any discretion but it binds and

compels the Court to take any of the aforementioned two

steps if the fresh evidence to be obtained is essential to the just decision of the case."

6. Learned counsel for respondent Nos. 2 and 3 submits that

there is no error committed by the learned Sessions Judge in passing

the impugned order and therefore, the criminal writ petition be

dismissed.

7. I have also heard learned A.P.P. for respondent No.1 State.

8. In the instant case, the petitioner original complainant insisting

the court to invoke the power under section 311 of Cr.P.C. on the

ground that in non compoundable case, he has deposed in favour of

the respondents original accused under the belief that they would

follow the terms and conditions of the compromise effected in the

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civil litigation, scrupulously. The petitioner original complainant has

made serious allegations against respondents original accused and

accordingly learned Magistrate has framed charge against

respondents original accused for having committed offences of

forgery and cheating by personation. The police machinery was set

in motion on the basis of such serious allegations made in the

complaint lodged in the police station. Even during the course of

investigation, disputed documents were sent to the handwriting

expert and after obtaining report, the charge sheet was submitted

before the Court. It was thus the duty of the petitioner complainant to

substantiate the charges levelled against respondents original

accused to his utmost capacity with all legal remedies available to

him. The petitioner original complainant, by filing application Exh.36

to some extent has accepted before the Court below that he has

made false statement before the court while recording his evidence

in order to support the respondents accused in terms of the

compromise effected between them in the civil litigation. However,

the said illegal course, is not available to any of the party, facing

criminal trial before the Court.

9. In view of the above, learned Additional Sessions Judge has

rightly taken a view that application Exh.36 cannot be allowed on the

ground, as is raised in the application. Needless to say that entire

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case of the petitioner/complainant rests upon the documentary

evidence and evidence of handwriting expert and thus the petitioner

still, can substantiate the charges levelled against the respondents-

accused.

10. In the light of above, no prejudice is likely to be caused to the

petitioner complainant. However, if application Exh.36 is allowed,

then the same would cause prejudice to the defence of the accused.

Thus, I do not find any error in the impugned order passed by the

learned Additional Sessions Judge. Hence, I proceed to pass the

following order:-

ORDER

Criminal writ petition is hereby dismissed. Rule discharged.

( V. K. JADHAV, J.)

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