Bombay High Court
Tikaram S/O Somaji Tembhurne And ... vs The State Of Maharashtra, Through ... on 7 September, 2017
Bench: P.N. Deshmukh
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL WRIT PETITION NO.744 OF 2015.
PETITIONERS: 1. Tikaram s/o Somaji Tembhurne,
aged about 50 years, Occu:Labour,
R/o Sonpuri, Tq.Sakoli, Distt.Bhandara.
2. Pratap Paikaudas Meshram,
aged about 49 years, Occu: Labour,
R/o Bodara,Tq.Sakoli, Distt.Bhandara.
: VERSUS :
RESPONDENT: The State of Maharashtra,
through Police Station Officer, Police
Station Sakoli, Distt.Bhandara.
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None for the petitioners.
Mr.S.D.Shirpurkar, Additional Public Prosecutor for the State.
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CORAM: P.N.DESHMUKH, J.
DATED: 7th SEPTEMBER, 2017.
ORAL JUDGMENT:
1. None for petitioners. Heard learned Additional Public
Prosecutor for the respondent.
2. Challenge in this petition is to order dated 23rd June, 2015
passed by learned Additional Sessions Judge, Bhandara, by which
Criminal Revision preferred by petitioners came to be dismissed.
Challenge in the Criminal Revision was to order passed by learned
Judicial Magistrate (F.C.), Sakoli in Regular Criminal Case No.208 of
2006 filed by respondent/State against the petitioners for the offences
punishable under Sections 420, 468, 470, 551 read with Section 34 of
the Indian Penal Code, wherein during the course of hearing of said
Revision, the application filed by Additional Public Prosecutor for
recalling PW.3 Sangram Chudaman Sangade was allowed for proving
one receipt, certified copy of which is filed with the charge-sheet. On
going through the record and proceedings it appears that the learned
Magistrate Court finding that the receipt, which is alleged to be forged
by petitioner no.1, was not filed on record but certified copy thereof
was on record and was exhibited as Exh.29 and thus, on an application
filed by prosecution as aforesaid, PW 3 was allowed to be recalled
which order was assailed in the Criminal Revision, contending same to
be contrary to the provisions of Section 311 of the Code of Criminal
Procedure.
3. Having considered facts as aforesaid, it is necessary to state
that powers under Section 311 of the Code of Criminal Procedure can
be exercised at any stage if the evidence of a witness appears to be
essential to the just decision of the case and in fact it is the duty of the
Court to summon or to recall and examine any such witness. Said
recourse can be adopted to by the Court even after the parties have
closed their sides. In other words, it is open to the learned Magistrate
to summon any person as a witness, if evidence of such person appears
to be essential for the just decision of the case.
4. Having considered above stated provisions and, in particular,
words "at any stage" would also include the stage when the evidence of
both sides is closed and matter is adjourned for judgment. In that view
of the matter, additional evidence can be permitted to be produced even
after the evidence of defence is complete or arguments are over. In that
view of the matter, there can be no fixed rule which can be laid down as
to examination of additional witness or to recall witness but the gist of
the provision is that if the Court finds that certain evidence is necessary
for the adjudication, said evidence can be brought on record in the
interest of justice, which is the paramount consideration.
5. Having considered the facts of the present case, it is noted
that document sought to be proved by prosecution by recalling PW 3
was already on record in the form of its certified copy. In that view of
the matter, by no stretch of imagination it can be said that petitioners
were put to any surprise by bringing on record any document. As such,
no prejudice is likely to be caused to petitioners if prosecution, on
realizing the fact that certified copy of a particular document is filed on
record which was inadvertently exhibited by the learned trial Court, had
moved application, Exh.64 to recall the witness for proving such
document. It, therefore, appears that the learned trial Court has rightly
allowed the application thereby allowing the prosecution to re-examine
the witness Sangram Chudaman Sangade for limited purpose of proving
the receipt. Impugned order therefore does not appear to be patently
wrong, illegal and in the light of provisions as aforesaid there appears
no reason to interfere in the same. In the circumstances, petition is
liable to be dismissed, hence the following order.
Petition is dismissed.
Rule discharged.
Stay to the proceedings bearing Regular Criminal Case
No.208 of 2006 pending on the file of learned Judicial Magistrate
(F.C.), Sakoli, Distt.Bhandara stands vacated.
JUDGE
chute
