Bombay High Court
Ajay Prabhakar Deshmukh vs State Of Mah. Thr. Anti Corruption ... on 27 July, 2022
Bench: V. G. Joshi
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPLICATION (APL) NO. 204 OF 2022
Ajay Prabhakar Deshmukh, Aged about
60 years, occ. Retired, R/o at present
Hemnandan Apartment, Near Jankalyan
Hospital, Shiv Colony, Indira Nagar,
Nashik, Tq. And Distt. Nashik.
... APPLICANT
VERSUS
State of Maharashtra,
Through Anti Corruption Bureau,
Akola, Tq. And Dist. Akola.
... NON-APPLICANT
_____________________________________________________________
Advocate h/f Shri S.V. Sirpurkar, Advocate for the applicant.
Mrs. M.H. Deshmukh, A.P.P. for the non-applicant/State.
______________________________________________________________
CORAM : VINAY JOSHI, J.
DATED. : 27.07.2022.
ORAL JUDGMENT :
ADMIT. Considering the controversy involved in the
application, the criminal application is taken up for final disposal
by consent of both the parties.
2. The applicant has challenged the legality and
correctness of the impugned order dated 17.12.2021 in Special
ACB Case No. 2 of 2006 whereby the Trial Court has declined to
recall the witness.
3. The applicant has been arraigned as an accused in
Crime No.3127 of 2005 registered with Ramdaspeth Police Station
for the offence punishable under Sections 7, 13(1)(d) read with
Section 13(2) of the Prevention of Corruption Act, 1988 ('the
Act'). After obtaining necessary sanction in terms of Section 19 of
the Act, he has been charge-sheeted in the Special Court which
was registered as Special ACB Case No.2 of 2006. The prosecution
led evidence including the evidence of Sanctioning Authority PW-3
Dr. Avinash Gote. It was followed by the evidence of other
witnesses and when the prosecution has closed the evidence, the
applicant (accused) has applied for recall of PW-3 i.e. Sanctioning
Authority in terms of Section 311 of the Code of Criminal
Procedure ('the Code'). The Special Judge has declined to recall
the witness vide impugned order.
4. The non-applicant/State resisted this application by
filing a reply affidavit. It is contended that the evidence of PW-3
was recorded on 11.09.2019 whilst after gap of two years, the
application for recall was made which lacks bona fides. It is
submitted that already Sanctioning Authority has been elaborately
cross-examined and thus, in order to fill up the lacuna recall is
not permissible. Lastly, it is submitted that already the prosecution
has closed the evidence and at such belated stage, the recall
cannot be permitted as the case is 15 years old.
5. Undisputedly, the Investigating Agency has obtained a
sanction for a prosecution since the applicant was public servant.
In order to prove the sanction, the prosecution has examined
Sanctioning Authority PW-3 Dr. Avinash Gote who was also cross-
examined. It is the applicant's case that the sanction accorded by
PW-3 is invalid on account of incompetency. During cross-
examination PW-3 has been confronted with a letter dated
28.09.2005 produced by the prosecution containing a clause that
the power of removal of applicant are with the Board of Directors.
In that context, PW-3 has stated that at relevant time Board of
Directors was not in existence and thus, he claims to be competent
for accorded sanction. It is the applicant's case that after cross-
examination, he has applied under the Right To Information Act,
2005 (for short 'the R.T.I. Act') wherein he got the information
that at relevant time the Board of Directors was in existence and
thus, to that limited extent he sought for recall of the witness.
6. The learned Trial Court has rejected the application on
account of delay of two years. It is stated that the applicant could
have sought necessary information under the R.T.I. Act prior to the
cross-examination, which he did not. In fact, during the cross-
examination, first time, it has come on record through PW-3 that
at relevant time Board of Directors was not in existence. The
information received under the R.T.I. Act spells something else
and for that reason clarification is required. In terms of Section 19
of the Act, prior sanction to the prosecution is a necessary feature
as it provides sufficient protection to the honest public servant.
The recall is sought to the limited extent for confronting the
witness on the point of existence of Board of Directors in context
with the information received under the R.T.I. Act. The point of
incompetency of sanctioning authoirty would certainly goes to the
root of the case. Merely on the basis of delay, the applicant's right
to put up the defence as available, cannot be taken away. Section
311 of the Code invests wide powers with the Court to recall a
witness at any stage of trial, if in the opinion of Court it is
necessary for the just decision of the case. It is informed that
though there is no stay to the proceeding of Trial Court yet, the
Trial Court has stalled the matter and not recorded even
statement of the applicant in terms of Section 313 of the Code.
Having regard to the said fact, the applicant can be permitted to
cross-examine the witness on above limited aspect only.
7. Having regard to the above facts, the application is
allowed. The impugned order dated 17.12.2021 passed by the
Trial Court on Exhibit 146 is hereby quashed and set aside. The
Trial Court shall recall PW-3 and applicant is permitted to cross-
examine the witness to the limited extent of information received
under the R.T.I. Act. The applicant shall cross-examine the witness
on a date fixed by the trial Court and if he fails his right of cross-
examination shall stand forfeited.
8. The application stands disposed of in the above terms.
(VINAY JOSHI, J.)
Trupti
TRUPTI SANTOSHJI AGRAWAL
29.07.2022 17:21
