Bombay High Court
Prashant Sadanand More vs Mansi Sunil Lambade And Anr on 28 September, 2021
Bench: S. K. Shinde
Digitally
30-APL-487-2021.odt
signed by
SHAMBHAVI
SHAMBHAVI NILESH
NILESH SHIVGAN
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
SHIVGAN Date:
2021.09.29
10:37:34
+0530 CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.487 OF 2021
Prashant Sadanand More ... Applicant
Vs
Mansi Sunil Lambade & Anr. ... Respondents
...
Mr. Sushrut Jadhwar for the Applicant.
Mr. Shrikant S. Shirsat for Respondent No.1.
Smt. Sharmila Kaushik, APP for the Respondent No.2-
State.
PSI S.G.Barkade, Nehrunagar Police Station Mumbai
present.
CORAM : SANDEEP K. SHINDE J.
DATE : SEPTEMBER 28, 2021.
JUDGMENT :
Rule.
2 Rule made returnable forthwith. With consent of
the learned counsel for the parties, matter is taken up for
final hearing forthwith.
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3 This application under Section 482 of the Code of
Criminal Procedure, 1973 challenges the order dated 24th
March, 2021 whereby the complainant's application under
Section 311 of the Cr.P.C. seeking to summon the material
witness was granted by the learned Additional Sessions
Judge, Greater Bombay, Mumbai and permitted prosecution
to examine the witness, Pusha Baban Mhaske.
4 Facts essential for the decision of this application
are as under:
Mansi Sunil Lambade (Complainant/Respondent
No.1) and the applicant-accused were, Secretary and
Chairman of one Housing Society. In the meeting of the
society held on 6th January, 2013, General Body had
resolved to supersede the managing body of the society. On
this issue, quarrel ensued between the complainant and the
applicant. Soon after the meeting, while complainant,
was returning to her flat, the applicant
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allegedly abused, threatened and slapped her in the
presence of members of the society. Afterwhich she lodged
the First Information Report and Crime No.9 of 2013 came
to be registered against the applicant under Sections 354,
509, 504 and 506 of the Indian Penal Code, 1860 against
the applicant. In the charge-sheet, filed against the
applicant, prosecution cited four witnesses; two eye
witnesses, besides the complainant and the Investigating
Officer. One of the eye witnesses was Smt. Pushpa Baban
Mhaske, whose statement under Section 161 of the Code of
Criminal Procedure, 1973 was recorded on 22nd January,
2013 (incident 6th January). Although, she was summoned
on 3rd August,2017 and 30th October, 2017, summons could
not be served on her; however, on 19 th December 2017, she
was informed on her mobile phone to remain present in the
Court and contact the Investigating Officer. For some reason
not known or informed, this witness could not be examined
and, therefore, complainant moved an application on 22 nd
January, 2020 and 10th February, 2020 under Section 311 of
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the Cr.P.C. to examine Pushpa Baban Mhaske, as
prosecution witness. These applications were supported by
the State. The Trial Court rejected the applications on the
ground that, although she was summoned on five
occasions, she chose to remain absent and further the
prosecution did not take appropriate steps to secure her
presence before the Court for recording her evidence. Yet
another reason for rejection was that application was
moved when the case, had reached the stage of final
arguments. The order of the Trial Court was carried in
Revision before Sessions Court, Mumbai. The Additional
Sessions Judge, allowed the revision and permitted
prosecution to examine Pushpa B. Mhaske. This order of
the Additional Sessions Judge is under challenge.
5 Heard the learned counsel for the parties.
Perused the orders and the notes of evidence.
6 The object of the provision of Section 311 of
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Cr.P.C. as a whole is to do justice not only from the point of
view of the accused and the prosecution but also from the
point of view of the victim. It is settled law that powers
conferred under Section 311 of the Cr.P.C. should be
invoked by the Court only for strong and valid reasons with
caution and circumspection. However, the Court can
exercise these powers at any stage of trial and, therefore,
there is no bar to summon the witness even at the stage of
final arguments of the case. Herein, the complainant, P.W.1
examined herself on 18th July, 2017 and Investigating
Officer was examined on 22nd September, 2018. After which
accused statement under Section 313 of the Cr.P.C. was
recorded on 29th March, 2019. On 10th February, 2020,
complainant filed written arguments. Roznama shows, the
matter was posted for arguments on 29th March, 2019. An
application under Section 311 of the Cr.P.C. was moved by
the complainant on 12th July, 2019. Yet another application
was filed under Section 311 of the Cr.P.C. by the
complainant on 22nd January, 2020. I have perused the
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notes of evidence and the applications. It may be stated
that an application filed under Section 311 of the Cr.P.C.
must be allowed if fresh evidence is being produced to
facilitate a just decision. Be that as it may, it appears,
although Pushpa Mhaske was cited as eye witness, she
would not bring fresh evidence but may corroborate
evidence of the complainant. Therefore, in my view, her
evidence may not be essential to facilitate a just decision of
the case. Even otherwise, record shows, application under
Section 311 of the Cr.P.C. was moved at the belated stage
of the trial. Although there is no bar to move application
even after statement of accused is recorded, but in the
facts of the case taking overall view, in my view,
prosecution has not put forth strong and valid reasons for
invoking the powers conferred under Section 311 of the
Cr.P.C. For these reasons, the impugned order permitting
prosecution to examine Smt. Pushpa Baban Mhaske is
quashed and set aside.
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7 Revision Application is allowed in the aforesaid
terms.
8 Rule is made absolute in terms of prayer clause
(b) .
(SANDEEP K. SHINDE, J.)
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