Bombay High Court
Balbhim Shamrao Barawkar And Ors vs The State Of Maharashtra And Anr on 20 October, 2016
Bench: V.K. Jadhav
cran100.09
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 100 OF 2009
1. Balbhim Shamrao Barawkar
(deleted as per Court order
dated 20.10.2016)
2. Bharat Balbhim Barawkar,
Age. 30 Years, Occ. Agri.
3. Dattatraya Balbhim Barawkar,
Age. 40 Years, Occ. Agri.
4. Bibishan Suryabhan Barawkar,
Age. 30 Years, Occ. Agri.
5. Dattatraya Sopan Barawkar,
Age. 25 Years, Occ. Agri.
All R/o. Pimpalgaon Alva,
Tq. Jamkhed, Dist. Ahmednagar. ...Applicants
Versus
1. The State of Maharashtra.
2. Subhash Madhavrao Barawkar,
Age. Major, Occ. Agri,
R/o. Pimpalgaon Alva,
Tq. Jamkhed, Dist. Ahmednagar. ...Respondents
...
Advocate for Applicants : Mrs. S K Doke and Mr. K.R. Doke
APP for Respondents: Mr. P.G. Borade
.....
CORAM : V. K. JADHAV, J.
DATED : 20th OCTOBER, 2016
ORAL JUDGMENT:-
1. Learned counsel for the applicants submits that during
pendency of this criminal application, applicant No.1 Balbhim
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Shamrao Barawkar, died and his name is required to be deleted from
the array of appellants. In the light of above, name of applicant No.1
Balbhim Shamrao Barawkar, be deleted from the array of applicants.
Deletion be carried out forthwith.
2. Being aggrieved by the order dated 17.3.2008 passed by the
learned J.M.F.C. Jamkhed on the application filed on 23.7.2007
annexed at Exhibit A to this criminal application, the applicants
preferred preset criminal application.
3. Brief facts giving rise to the present criminal application are as
follows:-
a) The applicants are facing trial for having committed the
offences punishable under Sections 143, 147, 148, 323, 504, 506 of
I.P.C. in R.C.C. No. 165 of 2001 in the Court of J.M.F.C. Jamkhed,
District Ahmednagar. In the cross case bearing S.T.C. No. 454 of
2001 one Shri Bankatrao Madhavrao Baravkar, who is an advocate,
is one of the accused. It was thus difficult for the applicants herein to
get the advocate to defend their case. The advocates engaged by
them from time to time remained absent in the trial and at some time
the trial was proceeded without their advocate on record. Thus, on
23.7.2007, the applicants original accused filed an application under
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Section 311 of Cr.P.C. before the Magistrate for recalling three
prosecution witnesses, including the complainant for their cross-
examination. The learned Magistrate, by impugned order dated
17.3.2008 rejected the said application. Hence, this criminal
application.
4. Learned counsel for the applicants original accused submits
that in the cross case, before the same Court, bearing S.T.C. No.
454 of 2001 one Bankatrao Madhavrao Barawkar is one of the
accused and is an advocate by profession. Thus, the advocates
engaged by the applicants accused, in the above case to conduct the
case, continuously remained absent at the time of trial. Initially, the
applicants accused had engaged one advocate, who has conducted
the case to the extent of releasing the applicants accused on bail
only, however, he has refused to conduct the trial. Thus, the
applicants accused engaged another advocate from Ahmednagar but
he also remained absent in the case and indirectly refused to
conduct the case. On all the dates, the applicants accused
constrained to pay Bhatta of the witnesses. Thereafter, the
applicants accused had engaged one advocate from Ashti and he
attended only three dates in the Court for trial. However, the said
advocate did not cross examine the complainant, whose examination
in chief was recorded on 22.4.2004 at Exh.24 and witness Houserao
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whose statement was recorded on 18.08.2004 at Exh.30. The
applicants accused then engaged another advocate to file an
application for recalling of witnesses for cross examination at Exh.46
and the same was allowed. However, when the witnesses remained
present before the court in compliance with the order passed by the
court in application Exh.46, the said advocate remained absent and
another advocate, though was present, refused to cross examine the
same witnesses. Even one of the accused by name Datta personally
cross examined the witness himself, however, he could not
effectively cross examine the witnesses for want of legal knowledge.
Learned counsel submits that it is well settled that if the accused is
unrepresented by the advocate, then it becomes the duty of the
Court to provide him advocate at the instance of the State or other
means. At present, the applicants accused engaged one advocate,
who assured them to remain present in the court. However, the
application submitted by the accused for recalling of three
prosecution witnesses was turned down by the Magistrate on the
ground that their earlier application came to be entertained by the
court, however, witnesses were not subjected to cross examination.
Learned counsel submits that the Magistrate ought to have allowed
the said application filed under Section 311 of Cr.P.C.
Learned counsel in order to substantiate her submissions,
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placed reliance on the judgment of Supreme Court in the case of T.
Nagappa vs. Y.R. Murlidhar, reported in 2008 DGLS (SC) 599.
Learned counsel submits that in the light of ratio laid down in the
above cited case, the applicants accused cannot be convicted
without an opportunity being given to them to present their case and
if it is denied to them, there is no fair trial. "Fair trial" includes fair and
proper opportunity to prove the innocence.
5.
Respondent No.2 though duly served with Rule notice,
remained absent.
6. In the instant case, it appears that though examination in chief
of the complainant Subhash Exh.24 was recorded on 22.4.2004 and
witness Hauserao was recorded on 18.8.2004 at Exh.30, they could
not be cross examined by the applicants accused for the reason that
the advocates engaged by them from time to time remained absent
before the court under one or the other pretext. It is not necessary to
consider here the reason for absence of those advocates when the
case was posted before the court for examination and cross
examination of the witnesses. However, the fact remains that the
applicants accused could not cross examine the aforesaid witnesses
due to absence of their advocates. It is now possible for the
applicants accused to cross examine those witnesses by recalling
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them, through their advocate engaged by them. Even on earlier
occasion though the application filed by the accused under Section
311 of Cr.P.C. came to be allowed by the court and witnesses were
permitted to be recalled and remained present before the court, the
applicants accused could not cross examine those witnesses due to
absence of their advocates. Learned Magistrate has not considered
the same while rejecting the application (Exh. A) dated 23.7.2007 on
the ground that opportunity was given to the applicants accused but
the same was not utilized by them.
7. In the light of observations made by Supreme Court in the case
of T. Nagappa vs. Y.R. Murlidhar, (supra) "fair trial" includes fair
and proper opportunities allowed by law to the accused to prove his
innocence. I do not think that the proper opportunity is given to the
applicants accused to prove their innocence.
8. In the light of the above discussion and in the light of ratio laid
down by the Supreme Court in the case of T. Nagappa vs. Y.R.
Murlidhar, (supra), I am inclined to allow this criminal application
with certain directions. Hence, I proceed to pass the following order:-
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ORDER
I. Criminal application is hereby allowed in terms of prayer
clauses "B" and "C".
II. The applicants accused shall remain present before the
trial court on 17.11.2016. The learned Magistrate shall
recall the witnesses as mentioned in the application dated
23.7.2007 (Exhibit "A") by issuing summons, returnable one
month thereafter and the applicants accused shall cross
examine the said witnesses on the date fixed for their
attendance before the court either in person or through
advocate.
III. Criminal application is accordingly disposed of. Rule made
absolute in the above terms.
( V. K. JADHAV, J.)
rlj/
