Rajaram S/O Sayaji Narote vs The State Of Maharashtra And ...
2017 Latest Caselaw 9221 Bom

                                                           Cri.Appln3527/2016
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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                     BENCH AT AURANGABAD

                   CRIMINAL APPLICATION NO. 3527 OF 2016


Rajaram s/o Sayaji Narote,
Age 35 years, Occu. Agri.,
r/o Kokarewadi (Dadegaon),
Taluka Ashti, District Beed                        .. Applicant

        Versus

1.      The State of Maharashtra

2.      Lahanu Babu Kokare,
        Age 55 years, Occu. Agri.,
        R/o Kokarewadi (Dadegaon),
        Taluka Ashti, District Beed

3.      Rangnath Nana @ Tukaram Kokare,
        Age 62 years, Occu. Agri.,
        R/o Kokrewadi (Dadegaon),
        Taluka Ashti, District Beed

4.      Rohidas Babu Kokare,
        Age 50 years, Occu. Agri.,
        R/o Kokarewadi (Dadegaon),
        Taluka Ashti, District Beed

5.      Bhausaheb Lahanu Kokare
        Age 30 years, Occu. Agri.,
        R/o Kokarewadi (Dadegaon),
        Taluka Ashti, District Beed

6.      Chandrakant Lahanu Kokare,
        Age 23 years, Occu. Agri.,
        R/o Kokarewadi (Dadegaon),
        Taluka Ashti, District Beed

7.      Mithu Babu Kokare,
        Age 49 years, Occu. Agri.,
        R/o Kokarewadi (Dadegaon),
        Taluka Ashti, District Beed

8.      Navnath Babu Kokare,
        Age 45 years, Occu. Agril.,
        R/o Kokarewadi (Dadegaon),
        Taluka Ashti, District Beed

9.      Dada Babu Kokare,
        Age 60 years, Occu. Agri.,
        R/o Kokarewadi (Dadegaon),




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                                                                 Cri.Appln3527/2016
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        Taluka Ashti, District Beed

10.     Bhausaheb Nana @ Tukaram Kokare,
        Age 50 years, Occu. Agri.,
        R/o Kokarewadi (Dadegaon),
        Taluka Ashti, District Beed

11.     Babasaheb Rangnath Kokare
        Age 27 years, Occu. Agri.,
        R/o Kokarewadi (Dadegaon),
        Taluka Ashti, District Beed                     .. Respondents

Mr S.D. Hiwarekar, Advocate for applicant
Mr R.V. Dasalkar, A.P.P. for respondent no.1-State
Mr D.G. Nagode, Advocate h/f Mr B.B. Kulkarni, Advocate for
respondents no.2 to 11


                                      CORAM : A.M. DHAVALE, J.

                                      DATE     : 30th November 2017
ORAL JUDGMENT

1.      Rule.     Rule returnable forthwith.   With the consent of learned

Counsel for the parties, matter is taken up for final disposal.

2. This is an application filed by the applicant for invoking powers

under Section 482 of the Code of Criminal Procedure, 1973

challenging the impugned order passed by the Judicial Magistrate,

First Class, Ashti, below Exh.172 in Regular Criminal Case No.209 of

2010 dated 21st April 2016.

3. The accused are charged for the offences punishable under

Sections 147, 148, 149, 324, 325, 447, 504 and 506 of the Indian

Penal Code. Four witnesses (1) Murlidhar Sayaji Naroti (2) Sayaji Hira

Narote (3) Babasaheb Sayaji Narote (4) Rajaram Sayaji Narote were

injured and medical certificates are brought on record. Murlidhar has

sustained depressed high parietal bone with contusion, diffuse

Cri.Appln3527/2016

cerebral oedema. The informant had appeared to assist the learned

A.P.P.

4. The Medical Officer was summoned. As he had not brought the

necessary documents and register, he was sent back on 21 st

November 2015. On the next date i.e. 20 th January 2016, he appeared

along with necessary documents but the learned A.P.P. and Court

refused to examine him. Hence, the informant filed application at

Exh.172 for his examination under Section 311 of the Code of Criminal

Procedure. The said application came to be rejected on two grounds.

(I) There is no provision in Code of Criminal Procedure to permit

the applicant to file such application as he has no locus standi;

(II) In spite of sufficient opportunities, the Medical Officer was not

examined and evidence of the prosecution was closed.

3. Heard the learned Advocate Mr S.D. Hiwrekar for the applicant,

Mr R.V. Dasalkar, A.P.P. for respondent no.1-State, Mr D.G. Nagode,

Advocate holding for Mr B.B. Kulkarni for respondents no.2 to 11.

4. Since the trial in trial Court is held up, this application is

disposed of expeditiously.

5. The main reason for rejection of application of the informant

was that he had no locus standi. It is a totally wrong approach. Right

of the informant in criminal proceedings initiated even on the police

Cri.Appln3527/2016

report is quite recognised. In J.K. International Vs. State (Govt.

of NCT of Delhi), 2001 (5) Bom. C.R. 845 SC it is observed that

scheme in Code indicates that a person who is aggrieved by offence is

not altogether wiped out from scene merely because police have

taken over investigations.

6. In Balasaheb Rangnath Khade and ors., Vs. State of

Maharashtra, 2012 (3) Bom. C.R. (Cri.) 632, it is observed that

the importance of rights of the victims in criminal trial and allowing

him to represent is highlighted. Under Section 372 of Cr.P.C. right of

appeal has been provided. In Vinay Poddar Vs. State of

Maharashtra, 2008 BCI (Soft) 146, right of the applicant to oppose

application for anticipatory has been recognised. In Bhagwant

Singh Vs. Commissioner of Police, AIR 1985 SC 1285, it is laid

down that before granting 'B' summary, the informant must be heard.

In Kishor Khanchand Wadhwani and anr. Vs. State of

Maharashtra and anr., 2012 (2) Bom.C.R. (Cri) 349, it is held

that victim has right to argue at the time of discharge. In Raosaheb

Aher & Ors. Vs. Bebitai w/o Pandit Sonwane & Anr., 2009 ALL

MR (Cri) 143, it was held that when the A.P.P. has given no objection

to the application of the victim, the issue of locus standi losses

significance. In that case, Medical Officer was permitted to be

examined and the order was upheld. In Karam Chand Mukhi And

Ors. vs Santosh Pradhan And Anr., 2004 Cr.L.J. 4380 Orissa, in

paragraph 11, it has been indirectly admitted that the victim has locus

standi to apply for examination of the witnesses.

Cri.Appln3527/2016

7. Record shows that the accused are prosecuted for offences of

rioting and causing grievous hurt and simple hurt with deadly

weapons and other offences. There are medical certificates of four

witnesses, the record shows that the Medical Officer had attended the

Court on 21.11.2015, but he had not brought the relevant

documents/register. On next date on 20.1.2016 he appeared along

with necessary documents, but learned trial Judge refused to examine

him. Learned trial Judge closed the evidence of prosecution.

8. Both, the learned trial Judge as well as learned A.P.P. have acted

contrary to the spirit of fair trial and the duty to deliver justice by

finding out true facts. It is axiomatic that if the Medical Officer is not

examined and the certificates are not proved, the accused are bound

to get benefit thereof and they might be acquitted. It is, therefore,

certain that examination of Medical Officer was essential for the just

decision of the case. The nature of injuries also indicate whether the

assault had taken place as described by prosecution witnesses or not

and, therefore, the proof of medical certificates may be also helpful to

the defence. In fact, these certificates are essential for finding out the

truth which is the duty of the trial Judge. Section 311 of Cr.P.C.

empowers the trial Judge to examine any witness at any stage and

imposes the duty to examine the witness whose evidence is essential

for the just decision of the case. The learned trial Judge mechanically

rejected the application of the applicant. In the first place, it is

unfortunate that the informant had to move such application, as

learned trial Judge and learned A.P.P. failed to perform their duties. On

merits, the said application deserved to be allowed and the Medical

Cri.Appln3527/2016

Officer should have been examined. In Rajendra Prasad Vs.

Narcotic Cell, 1999 SCC (Cri) 1062, relying on Jamaraj Kewalji

Govani Vs. State of Maharashtra, AIR 1968 SC 178, it is held : It

would appear that in our criminal jurisdiction, statutory law confers a

power in absolute terms to be exercised at any stage of the trial to

summon a witness or examine one present in court or to recall a

witness already examined, and makes this duty and obligation of the

court provided the just decision of the case demands it (Para 10). In

Masalti Vs. State of U.P., AIR 1965 SC 202, in paragrraph 11, it is

held : It is undoubtedly the duty of the prosecution to lay before the

Court all material evidence available to it which is necessary for

unfolding its case. In Ram Mandal Vs. State of Zarkhand, 2006

Cr.L.J. 293 Zarkhand, the case was 25 years old. There was no

progress since 1993, but the offences were grave. The defence was

closed in 2003. It was held that Investigating Officer and Doctor were

then available and have appeared in the Court. Order of allowing

their examination under Section 311 Cr.P.C. was proper. Secondly,

the circumstances indicate that the issue of locus standi was not at all

relevant and on technical ground, the learned trial Judge could not

have denied fair opportunity to the victims to get justice. Thus, on

merits as well as on technicality, the rejection of application was

illegal and the impugned order, therefore, deserves to be set aside.

Hence, the order:

ORDER

(I) Criminal Application stands allowed. The impugned order dated

21st April 2016 passed by learned Judicial Magistrate, First Class, Ashti

Cri.Appln3527/2016

below Exh.172 in Regular Criminal Case No.209 of 2010 is hereby set

aside.

(II) The learned trial Judge is directed to examine the Medical

Officer/witnesses who have issued the medical certificates and then

proceed with the trial as per law.

(III) Rule is made absolute in above terms with no order as to costs.

( A.M. DHAVALE, J.)

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