Bombay High Court
Pramod Ramesh Chougule vs The State Of Maharashtra on 2 December, 2021
Bench: S. K. Shinde
Rane 1/6 WP-5318-2019-SR.5
2December,2021.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO. 5318 OF 2019
PRAMOD RAMESH CHOUGULE ) PETITIONER
V/S.
THE STATE OF MAHARASHTRA ) RESPONDENT
****
Mr. Ajit M. Savagave, Advocate for the petitioner.
Mr. A.R. Patil, APP for State.
Coram : Sandeep K. Shinde, J.
Thursday, 2nd December, 2021.
P.C. :
1. This petition assails, the order dated 12 th June, 2019
in Regular Criminal Case No.140/2013, passed by the
Judicial Magistrate First Class, Jaysingpur by which
petitioner's application under Section 311 of the Code of
Criminal Procedure, to recall, the prosecution witnesses
no.4 and 5, has been rejected.
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2December,2021.
2. BACKGROUND FACTS :
(a) Petitioner, is facing the trial in RCC
No.140/2013, on the charge of committing,
offences under Sections 324 and 427 of the Indian
Penal Code in RCC No.140/2013.
(b) Charge was framed on 20th April, 2014. On 7th
May, 2019 prosecution examined witness no.4. On
the said day, applicant-accused was absent. To
afford opportunity to cross-examine, the witness,
P.W.no.4 was summoned on 30th June, 2018. On
this day, accused did not remain present.
Obviously, Witness no.4, was not cross-examined.
The learned trial Court, therefore passed "No
cross" order.
(c) On 5th December 2018, prosecution examined
P.W.No.5 (complainant). At the material time,
applicant was absent. Yet, to afford him
opportunity to cross-examine the witness,
P.W.No.5 was summoned on 19th December, 2018.
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2December,2021.
Even on that date, the accused did not remain
present and applicant's application seeking
exemption of presence was rejected by the Court.
In consequence thereof, "No cross" order was
passed.
3. It may be stated that the P.W.5 (complainant), as
it appears, was ordinarily residing at USA. Although, he
remained present on two occasions, the accused did not
cross-examine him.
4. Therefore, frst "No cross" order was passed on
30th June, 2018 and second "No cross" order was passed on
19th December, 2018.
5. On 21st February, 2019 applicant moved an
application seeking order, to recall the "No cross" orders
passed on 30th June, 2018 and 19th December, 2018.
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2December,2021.
6. That after hearing the prosecution and the
accused, the application was rejected on 12 th June, 2019.
This order is assailed in this petition.
7. It may be noted that, application to recall the
P.W.4 was preferred nearly after seven months. There is
no justifcation, for such unreasonable delay in preferring
the application. This fact, itself indicates and suggest that
the petitioner-accused was only interested in protracting
the trial.
8. Insofar as "No cross" order passed on 19th
December, 2018 is concerned, it may be stated, this witness
no.4, came all the way from USA, on two occasions,
however, for one or other reason, the accused did not cross-
examine him.
9. Thus, taking overall view of the matter, it is to
be held that the petitioner-accused was, simply interested
in protracting the trial. It is nothing, but abuse of process
of law.
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2December,2021.
10. Learned Counsel for the petitioner, submitted
that, no party in a trial can be foreclosed from correcting
the errors and further, that functioning of the Court is not
to count the errors committed by the parties or to fnd out
and declare who among the parties performed better, but
endeavor of the Court is to arrive at a truthful fnding in a
criminal prosecution and to ensure that the right of the
accused of fair trial is adequately protected. In support of
this submission, learned Counsel for the petitioner, has
relied on the judgment of this Court in the case of Kishor
Anandrao Gaidhane Versus. State of Maharashtra, 2018
All.M.R. (Cri.) 3470. In the said case, the application was
moved to recall the witness on the ground that due to
inadvertence, certain questions could not be put in the
cross-examination by the counsel. Therefore, the facts of
the cited case were, altogether different, from the case in
hand. Herein, there is suffcient material on record to infer
and hold, that the applicant-accused was only, interested in
protracting the trial. In view of facts of the case, the trial
Rane 6/6 WP-5318-2019-SR.5
2December,2021.
Court has not committed any error in exercise of the
jurisdiction. The petition is dismissed.
Digitally
signed by
NEETA
NEETA SHAILESH
SHAILESH SAWANT
SAWANT Date:
2021.12.03
16:54:56
(Sandeep K. Shinde, J.)
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