Ratan S/O. Dashrath Kiratkar vs The State Of Maharashtra Thr. Anti ...
2017 Latest Caselaw 9669 Bom

Judgment

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
           NAGPUR BENCH, NAGPUR

          CRIMINAL APPLICATION (APL) NO.739 OF 2017

Ratan s/o Dashrath Kiratkar,
Aged about 54 years,
Occupation Service,
R/o Quarter No.237, Nikat Police
Line, Akola, Tahsil and District
Akola.                                                                 ..... Applicant.

                                    ::   VERSUS   ::

The State of Maharashtra,
Through Anti Corruption Bureau,
Akola.                                                           ..... Non-applicant.

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           Shri S.V. Sirpurkar, Counsel for the applicant.
           Mrs. Geeta Tiwari, Addl.P.P. for the State.
================================================================


                                CORAM : V.M. DESHPANDE, J.

                                DATE    : DECEMBER 15, 2017.

ORAL JUDGMENT

1.               Rule.     Rule   made   returnable   forthwith.     Heard

finally by consent of learned counsel Shri S.V. Sirpurkar for

the applicant and learned Additional Public Prosecutor Mrs.

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Geeta Tiwari for the State.

2. The present applicant was shown as an accused in

Special (ACB) Case No.6 of 2005. The charge-sheet was filed in

the year 2005. The Trial commenced in the year 2016. During

the course of the Trial, on 31.7.2017 learned Special Judge

(ACB) at Akola passed order below Exhibit-1 when an

application for adjournment was moved on behalf of the

prosecution without assigning any reason for the same.

Consequently, learned Special Judge ordered that the case be

placed for recording statements of accused persons.

3. Subsequent to the said, on 17.8.2017, application

Exhibit 158 was moved by learned Prosecutor who was

incharge of the brief. The said application was under Section

311 of the Code of Criminal Procedure for issuance of

summonses to the witnesses for recording their evidences.

4. In application Exhibit 158 it was pointed out that

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the investigation was carried out by Investigating Officer

from the Anti Corruption Bureau at Akola Shri A.H.G. Sheikh

and also further investigation was conducted by Shri Y.D.

Patil as investigator. In the application, it was stated that

Shri Y.D. Patil expired on 6.8.2015 and Shri A.H.G. Sheikh was

suffering from Throat Cancer and he was under treatment of

Chemotherapy and Radiation and was unable to speak.

Further, it was pointed out that Shri A.H.G. Sheikh was

suffering from Kidney and Spinal disability and also was

unable to move. It was also pointed out that Shri A.H.G.

Sheikh has given about his medical condition along with

medical papers which were filed on record. In the

circumstances, it was prayed by the prosecution that the

writers, who were working with Shri Y.D. Patil and Shri

A.H.G. Sheikh, be permitted to lead evidence on behalf of the

prosecution. Their names were also mentioned in the

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application.

5. There were two accused persons. Accused No.1

has given no objection for the said application. However,

accused No.2 i.e. the present applicant has objected the said

application. The main crux of the application and also it

could be seen from the submissions advanced before this

Court by learned counsel for the applicant that his prior

application Exhibit 127 was rejected by learned Judge and,

therefore, there should not be a different treatment to the

prosecution. The prosecution should be given the same

treatment which was meted out to the present applicant.

6. Learned Judge on 14.9.2017 allowed the

applications and directed that the witness summonses be

issued to the witnesses whose names are stated in Exhibit 168.

7. In my view, learned Judge has rightly allowed the

applications and has rightly directed for issuance of the

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witness summonses.

8. The power of the Court under Section 311 of the

Code of Criminal Procedure is wide. The Court has all power

at any stage of the Trial to summon any person as a witness or

to examine any person in attendance, though not summoned

as a witness or can recall or re-examine any person already

examined if it appears to the Court that it is essential for the

just decision of the case.

9. In the present case, it appears that the

prosecution was handicapped in not producing the

investigating officers. It is to be noted that the applicant is

facing the charge under the Prevention of the Corruption Act,

1988 in which the role of the investigating officers is having

its own importance. One investigating officer Shri Y.D. Patil

expired. Whereas, another investigating officer Shri A.H.G.

Sheikh was suffering from the medical problems as are stated

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in foregoing paragraphs. Therefore, it was beyond the control

of the prosecution to produce any of the investigating officers

to depose before the Court from the witness box. One Shri

A.H.G. Sheikh was suffering from Throat Cancer and was

under the treatment of Chemotherapy and Radiation.

10. There cannot be any dispute when the statement is

made by learned Prosecutor that the said investigating officer

is unable to depose. However, for not examining the

investigating officers, justice should not be victimized.

Therefore, in my view, the prosecution has rightly moved an

application for examining the writers of those two

investigating officers who were throughout with them and

participated in the entire investigation process. Therefore, it

is always open for the prosecution to adduce their evidences.

What will be the evidentiary value will have to be decided by

learned Judge of the Court at the appropriate stage. Further,

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they will be available to the present applicant for their cross-

examination. Therefore, their cannot be any prejudice to the

applicant if he is summoned and examined as a prosecution

witness.

11. Consequently, there is no perversity in the order

which is impugned before this Court. Hence, the criminal

application is rejected. Rule is discharged.

JUDGE

!! BRW !!

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