Sanjay Rameshchandra Varma vs The State Of Maharashtra
2021 Latest Caselaw 14339 Bom

Rane                           1/6        APL-479-2021 (sr.26)
                                                    4.10.2021

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

          CRIMINAL APPELLATE JURISDICTION

         CRIMINAL APPLICATION NO. 479 OF 2021



Sanjay Rameshchandra Varma                  .....Applicant

         V/s.

The State of Maharashtra                    .....Respondent



                         ****

Mr. Chetan Agrawal a/w. Ms. Nikita Banatwala,

         Advocate for the applicant.

Mr. S.S. Hulke, APP for State.

                         Coram : Sandeep K. Shinde, J.

4th October, 2021.

P.C. :

1. Heard.

2. This application under Section 482 of the

Criminal Procedure code, challenges the order dated

19th January, 2021 by which an application moved by

accused under Section 311 to recall the complainant Rane 2/6 APL-479-2021 (sr.26) 4.10.2021

(P.W.1) and P.W.2 to cross-examine them has been

rejected, by the Additional Sessions Judge, Thane.

3. Facts essential for the decision of this

application are that, applicant is accused in Sessions

Case No.81/2019 facing charge under Sections 302 and

397 of the Indian Penal Code. Prosecution case in brief

is that; complainant, Monica Naidu (P.W.1) was friend

of the deceased. On 5 th November, 2021 deceased was

not responding phone calls of one, Micheal. Therefore,

Michael contacted the complainant. Deceased and the

complainant were living in one building. A key of the

flat of deceased was kept with one, Celine Dssouaa, who

was also residing in the same building. Thereafter,

complainant opened the flat of the deceased in the

presence of security guard. Dead body of Rita

(deceased) was found lying in the flat. P.W.2 is the son

of the informant to whom, the complainant had asked

to trace the whereabouts of deceased, when deceased

was not responding to phone calls. These two

witnesses were cross-examined by the Advocate of the Rane 3/6 APL-479-2021 (sr.26) 4.10.2021

accused-petitioner on 8th November, 2019. On 26th

November, 2019 accused appointed another Advocate,

whereafter new Advocate fled an application under

Section 311 of the Criminal Procedure Code, on 5 th

January, 2021. The application reads as under :

". It is respectfully submitted that the accused desired to recall the P.W.1 and P.W.2 who have been cross-examined by Adv. Shri. Patil, however, the said witness are remained to be examined on material points which raised in the examination-in-chief, to meet the ends of justice. The accused is facing the trial of Section 302 of the IPC and thorough cross- examination of witnesses is required in the matter. It is also fundamental right of accused to defend the matter by all means.

. It is therefore prayed that, the P.W.1 and P.W.2 may kindly be recalled for the particular cross-examination on material points to meet the ends of justice, in the interest of justice & obliged."

5. The learned trial Court declined to recall the

witnesses on the ground that, application moved by the

accused was bereft of convincing reasons. Rather, the Rane 4/6 APL-479-2021 (sr.26) 4.10.2021

learned Judge was found application was fled

routinely to fll up the lacunas. The learned Judge, has

noticed that, after discharging the Advocate who had

cross-examined the witnesses, another advocate

moved this application. On these grounds, the learned

Judge declined to pass an order under Section 311 of

the Criminal Procedure Code. Feeling aggrieved by

this order, the accused has approached this Court in its

inherent jurisdiction under Section 482 of the Criminal

Procedure Code.

6. Heard learned Counsel for the applicant and

learned APP for the State.

8. Learned Counsel in support of the

submission relies on the judgment of the Apex Court in

case of P. Sanjeeva Rao Versus. State of Andhra

Pradesh, 2012 (7) SCC 56. In the said case, two

prosecution witnesses were not examined, not because

there was nothing incriminating in their testimony, but Rane 5/6 APL-479-2021 (sr.26) 4.10.2021

because the appellant (accused) had intended to cross-

examine them after the Trap Laying Offcer, had been

examined. Keeping in view, the serious consequences

will follow, if witnesses were not examined, petitioners

in the cited case were permitted to recall the

witnesses. These facts in the cited judgments were

altogether different than the facts in the case in hand

and therefore the judgment has no application herein.

9. I have perused the application seeking to

recall the witnesses. The settled law is the aid of

Section 311 should be invoked only with the object of

discovering relevant facts and and obtaining a proper

proof of such facts for just decision of the case and it

should not be used for flling up the lacuna by the

prosecution or by the defence as held in Mohan Lal

Shamlal Soni V/s. Union of India, AIR 1991 SC 1346.

Herein, the application was fled routinely, by an

Advocate who was appointed, after discharging the

Advocate who had cross-examined the P.W.1 and P.W.2.

                Rane                        6/6        APL-479-2021 (sr.26)
                                                                4.10.2021

The application does not suggest at all as to the

circumstances which prompted the accused to apply

for recalling the witnesses, except to say, witnesses

were not examined on material points. The only

reason, in my view, to move the application was that

another Advocate appointed by the accused was of the

opinion that the witnesses were not properly cross-

examined. Obviously, this could not be a reason to

move an application under Section 311. It is nothing

but an abuse of law. Therefore, the impugned order

cannot be faulted with. For that reason, the

application is rejected.

         Digitally
         signed by
         NEETA                            (SANDEEP K. SHINDE, J.)
NEETA    SHAILESH
SHAILESH SAWANT
SAWANT   Date:
         2021.10.07
         17:10:12
         +0530