Bombay High Court
Ramdas S/O Shrihari Munjekar vs State Of Maharashtra, Thr. P.S.O. ... on 16 September, 2016
Bench: S.B. Shukre
APL No.252/2016 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPLICATION [APL] NO.252 OF 2016
Applicant : Ramdas s/o Shrihari Munjekar,
Age 59 years, Occupation : Private,
R/o Rashtrawadi Nagar, Chandrapur.
-- Versus --
Non-Applicant
: State of Maharashtra,
Through Police Station Officer,
Police Station Ram Nagar, Chandrapur.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
Shri R.R. Vyas, Advocate for the Applicant.
Shri S.J. Kadu, A.P.P. for the Non-Applicant.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
C ORAM : S. B. SHUKRE, J.
DATE : 16
SEPTEMBER, 2016.
th
ORAL JUDGMENT :-
Heard. Admit.
02] Heard finally by consent of the learned Counsel for the parties.
03] By this revision application, the applicant has challenged the
orders dated 29/07/2010 and 15/10/2015 respectively passed by the learned
Chief Judicial Magistrate, Chandrapur and the learned Additional Sessions
Judge, Chandrapur to the extent they reject the application [Exh.22] filed by
the applicant under Section 91 of the Code of Criminal Procedure seeking
intervention of the Court in calling for the documents listed in the
application.
04] According to the learned Counsel for the applicant, the
impugned orders are illegal, perverse and arbitrary as they presume certain
facts, which are not borne out from the record, are against the settled
principles of law and have resulted in depriving the applicant of an
opportunity to defend himself fairly.
05] The learned A.P.P. for the State submits that at this stage, no
immediate prejudice has been caused and, therefore, it may not be necessary
to interfere with the order.
06] The application vide Exh.22 clearly shows that the applicant has
taken serious exception to the comments made in the Audit Report and has
rejected them. He has also clarified that there were several documents which
were either not shown to the Auditors or not considered by them while
submitting the Audit Report. It is also his contention that if these documents
had been considered by the Auditors, perhaps the conclusions made in the
report could have been different. This is what the learned Counsel for the
applicant submits, was canvassed before the Courts below, but to no avail.
There is no reason for me to dispute the fact that these very grounds of the
application were not brought to the notice of the Courts below. Yet, it is
surprising that the Courts below have recorded a concurrent finding that this
applicant never mentioned in the application at Exh.22 that these documents
were necessary for his defence. I do not understand what more eloquence
was required on the part of the applicant to drive home the reason behind
and the purpose for which the application under Section 91 Cr.P.C. was
moved by him. Therefore, the argument that the impugned orders disclose
perversity has to be accepted.
07] It has also been opined by the Courts below that the stage for
adducing of defence evidence is yet to arrive and, therefore, there is no need
for calling for these documents. It has also been found by the Courts below
that the applicant has failed to show the existence of these documents and
also the fact that they are in the custody of the prosecution. I think, the
Courts below have gone way off the mark in reasoning so. Existence of these
documents, in fact, ought to have been denied by the prosecution. But,
prosecution did not and did not even file say to the application. So, the
reason given in the impugned orders is incorrect, having been based on some
assumptions wrongly made. I must say, these documents are certainly
required by the applicant to effectively cross-examine the prosecution
witnesses. Otherwise, a blame would be placed upon his shoulders that no
specific defence, rather no foundation for taking a defence was led by the
applicant. So far as concerned the ground resorted to by the Courts below
that this applicant has failed to show the documents to be in the custody of
the prosecution is, I must say, it has never been the case of the applicant that
these documents are in the custody of the prosecution. Therefore, in these
circumstances, I am of the view that, the learned Chief Judicial Magistrate
and the learned Additional Sessions Judge have not considered the grounds
taken by the applicant appropriately and also have not seen the importance
of these documents from the view point of putting forward an effective
defence in the matter. In fact, these documents as listed in the application at
Exh.22 appear to be of seminal importance from the view point of defence
and since the principles of fairness require that the accused be given an equal
opportunity for proving his case, the application ought to have been allowed.
In the result, the revision application deserves to be allowed by quashing the
impugned orders.
08] The revision application is allowed. The impugned orders are
hereby quashed and set aside. The application at Exh.22 is allowed.
Summons to the witnesses accordingly shall be issued in terms of Section 91
of the Code of Criminal Procedure.
JUDGE
*sdw
C E R T I F I C A T E
I certify that this judgment uploaded is a true and
correct copy of the original signed judgment.
Uploaded by: S.D. Waghmare Uploaded on : 20/09/2016
P.A. to the Hon'ble Judge.
