Bombay High Court
Dr. Rajesh S/O. Baburaoji Likhar ... vs State Of Maharashtra Thr. Dgp ... on 24 August, 2017
Bench: P.N. Deshmukh
cwp427.17 1/5
FARAD CONTINUATION SHEET
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
CRIMINAL WRIT PETITION NO.427 OF 2017.
PETITIONERS : 1. Dr.Rajesh s/o Baburaoji Likhar,
aged 45 years, Occu: Doctor,
2. Dr.Archana w/o Rajesh Likhar,
aged 40 years, Occu: Doctor.
3. Padmawati d/o Narayan Katre,
age 35 years, Occu: Sister.
All resident of Sai Baba Fracture
Hospital and Maternity Home,
Vivekanand Colony, Civil Lines,
Gondia,Tq. and Distt.Gondia.
..VERSUS..
RESPONDENT : State of Maharashtra,
through DGP, Gondia,Tq. and
Distt.Gondia.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
Mr.N.R.Tekade, Advocate for the petitioners.
Mrs.Sangita S.Jachak, Additional Public Prosecutor for State.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
CORAM : P.N. DESHMUKH, J.
DATE : 24th AUGUST, 2017.
ORAL JUDGMENT :
1. Rule. Rule is made returnable forthwith. Heard finally by
consent of learned counsel of both the parties.
cwp427.17 2/5
2. Challenge in this petition is to the order of Revisional Court
dated 26th April, 2017 passed in Criminal Revision No.11 of 2017 by
learned Sessions Judge, Gondia, setting aside order passed by the
learned Judicial Magistrate (F.C.), Gondia in Regular Criminal Case
No.807 of 2013, by which application, Exh.33 moved by prosecution
for recalling of three prosecution witnesses came to be set aside and
thus, granted permission to prosecution to recall P.Ws.1 to 3 for further
evidence.
3. Learned counsel for the petitioners has submitted that in an
application moved before the learned trial Court there is no convincing
reason put forth for recalling prosecution witnesses, except for stating
that since there is change of learned Additional Public Prosecutor
before the learned trial Court, said officer thought it necessary to recall
the witnesses, however, has not mentioned any reason as to what was
the ambiguity or otherwise found in the evidence of witnesses who are
prayed to be recalled and thus, it is contended that the learned trial
Court had rightly rejected the prayer for recalling of witnesses.
However, learned Revisional Court without considering this aspect
merely holding that Prosecutor is the best person to judge the case
cwp427.17 3/5
conducted by him, allowed the revision thereby allowing to recall
prosecution witnesses.
4. Perusal of record reveals that petitioners are facing Charge
for the offences punishable under Sections 4, 5(4) of the Medical
Termination of Pregnancy Act, 1971 alleging that on 4 th August, 2013
based on information received, on visiting petitioners' Nursing Home,
petitioners were found indulged in an act of illegal termination of
pregnancy and accordingly came to be prosecuted as aforesaid. During
the trial, prosecution has examined three witnesses, however, they
have not supported the case of prosecution. Thereafter, Special Public
Prosecutor appeared to handle the cases under Medical Termination of
Pregnancy Act for prosecution and finding that the witnesses since did
not support the prosecution are required to be recalled, filed an
application before the learned trial Court to that effect. Perusal of
application, which is at Exh.33, reveals that there is not a single reason
put forth therein by the learned Special Public Prosecutor which was
necessary to be considered for the purpose of recalling of PWs 1 to 3,
as in the application the only reason put forth was that after the Special
Public Prosecutor, who has applied for recall of witnesses, appeared in
the matter, he found that witnesses PWs 1 to 3 are necessary to be
cwp427.17 4/5
recalled as they did not support the case of prosecution. As such, it is
noted that when evidence of said witnesses came to be recorded, some
other Additional Public Prosecutor was conducting the case for
prosecution and after Special Public Prosecutor was appointed, he filed
this application. As such, it is material to note that application moved
was totally silent with reference to ingredients of Section 311 of
Cr.P.Code, according to which witness can be allowed to be recalled if
there is any ambiguity in the evidence recorded.
5. As already stated aforesaid, revisional Court without
considering provision of Section 311 of Cr.P.Code in its true
perspective, merely finding that the Prosecutor is the best judge of the
case, set aside the order of the learned trial Court, which in fact
appears to be well reasoned order where from it is also found that in
fact all the three prosecution witnesses, who are prayed to be recalled,
have not supported the case of prosecution and in fact are also cross-
examined by the earlier Additional Public Prosecutor, who had
recorded their evidence. The learned trial Court has also specifically
noted that even in the cross-examination, learned Additional Public
Prosecutor could not extract any material admission which can be read
in favour of prosecution and thus finding that there was no ambiguity
cwp427.17 5/5
in the evidence, nor new matter has come on record for which re-
examination or to recall of witnesses, in that case would have been
necessary, rejected the application.
6. Having considered facts involved as aforesaid, petition
succeeds. In such circumstances, petition is liable to be allowed as per
following order.
-ORDER-
(i) Impugned order passed in Criminal Revision No.11 of
2017 is set aside.
(ii) Rule is made absolute in above terms with no order as
to costs.
JUDGE
chute
