Bombay High Court
Faizal A Wahid vs State Of Maharashtra on 7 October, 2022
Bench: Amit Borkar
15-apl924-2022.doc
AGK
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.924 OF 2022
Faizal A. Wahid ...Applicant
V/s.
The State of Maharashtra
at the instance of C.B.I., BS & FC
Mumbai ...Respondent
Mr. Sudeep Pasbola with Mr. Ayush Pasbola and Mr.
Siddharth Mehta for the applicant.
Mr. Kuldeep S. Patil for the respondent no.1/CBI.
Ms. G. P. Mulekar, APP for the State.
CORAM : AMIT BORKAR, J.
DATED : OCTOBER 7, 2022
P.C.:
1. By this application under section 482 of the Code of Criminal
Procedure, the applicant/accused is challenging the order dated 5th
September 2022 passed below Exhibit 556 by the Special Court
(C.B.I.) in Special Case No. 95 of 2022 rejecting the application
under section 311 of the Code of Criminal Procedure to recall two
witnesses of the prosecution for further cross-examination.
2. The application was a director of a company along with
other co-accused against whom prosecution has been launched for
an offence under sections 12-B read with 201, 420, 467, 468 and
15-apl924-2022.doc
471 of the Indian Penal Code and section 13(2) read with section
13(1)(d) of the Prevention of Corruption Act, 2018 before Special
Court in CBI Special Case No. 95 of 2000. During the trial, the
prosecution examined two (2) witnesses, PW1 Mahindra Pal Singh
Bakshi and PW2 Suresh T. Sahani.
3. The gist of the prosecution's case is that Indian Oil
Corporation was supplying aviation fuel to East-West Airlines,
which was granted twenty-one (21) days of interest-free credit
facility for uplifting aviation turbine fuel for their aircraft. It is
alleged that the accused no.1, from 21st March 1996 to 21st May
1996, cheated Indian Oil Corporation to the tune of Rs. 1.6 crore.
4. According to the applicant, PW1 and PW2 made a material
improvement in their deposition. The defence advocate appearing
for the applicant cross-examined PW1 and PW2. But since the
cross-examination was composite, there was no cross-examination
with regard to the role of the applicant. Therefore, the applicant
applied for Exhibit 556 before the Special Court seeking recall of
PW1 and PW2, which was rejected by the impugned order dated
26th September 2022. While dismissing the application, the
learned Special Court recorded a finding that there is no omission
in the statement either of PW1 or PW2. It is held that it is not
expected from the witness to narrate the events in a cyclostyled
form in accordance with their statements recorded by C.B.I. It is
held that the evidence narrated by both these witnesses, which is
termed as an omission by the applicant, is a part of the
correspondence, and they make averments in their statements and
correspondence which is part of the previous statement and,
15-apl924-2022.doc
therefore, recorded a finding that there is no material omission.
The applicant has, therefore, filed the present application.
5. Learned advocate for the applicant submitted that the power
under section 311 of the Code of Criminal Procedure could be
exercised at any stage of the proceedings. It is submitted that the
earlier advocate, due to inadvertence, had not conducted the cross-
examination of PW1 and PW2 properly, causing legal prejudice to
the accused no.3. He submitted that the statements of PW1 and
PW2 implicating the applicant did not surface during the
investigation but, for the first time, brought in evidence of PW1
and PW2. He relied on the Apex Court's judgment in the case of
Rajendra Prasad v. Narcotic Cell reported in (1996) 6 SCC
110, and Rajaram Prasad Yadav v. State of Bihar & Anr.
Reported in (2013) 14 SCC 461.
6. Per contra, learned advocate for C.B.I. submitted that mere
change of advocate could not be a ground for allowing the
application under section 311 of the Code of Criminal Procedure.
Since the Special Court has recorded a finding that there is no
omission at all in the statement of either PW1 or PW2, there
cannot be scrutiny of oral evidence of the case of the prosecution
to decide as to whether there is material omission or not which can
be done at the time of delivery of judgment by the Special Court.
He submitted that after the examination of PW1 and PW2, 32
witnesses were examined. The examination of PW1 and PW2 was
conducted in 2015-2016, while the application under section 311
was filed on 19th August 2022, i.e., after six (6) years of
examining PW1 and PW2. He, therefore, submitted that the
15-apl924-2022.doc
Special Court had rightly rejected the application.
7. Having carefully considered the submissions on behalf of the
parties, I am satisfied that the learned Special Court has exercised
its jurisdiction in a proper manner, and there is no error of
jurisdiction committed by the learned Special Court while rejecting
the application.
8. Apart from the finding recorded by the Special Court that
there is no omission at all, it must be noted that the examination
of PW1 and PW2 was conducted in 2015-2016. The application
under section 311 of the Code of Criminal Procedure was filed on
19th August 2022. The cross-examination of PW1 and PW2 was
conducted by the advocate by choice of the applicant. The learned
advocate for C.B.I. is right in submitting that a mere change of
offence is not a ground for grant of an application under section
311 of the Code of Criminal Procedure.
9. The Apex Court, in the case of State (NCT of Delhi) v.
Shiv Kumar Yadav, reported in (2016) 2 SCC 402 has held that
the object of the provision for the recall is to reserve the power of
the Court to prevent any injustice in conducting of the trial at any
stage. While the advancement of justice remains the prime object
of law, it does not mean that recall can be allowed for asking or
reasons related to mere convenience. It is normal to be presumed
that a counsel conducting a case is competent, particularly when a
counsel is appointed by the choice of the applicant. The witness
cannot be expected to face the hardship of appearing in Court
repeatedly, which can result in undue hardship for victims if they
15-apl924-2022.doc
are required to repeatedly appear in Court to face prosecution.
10. In the facts of the present case, it is not the case of the
applicant that the earlier advocate had any disability or could not
cross-examine PW1 and PW2. There is no satisfactory explanation
as to why the applicant waited for six (6) years and completed the
examination of thirty-two (32) witnesses after the examination of
PW1 and PW2.
11. In so far as the judgment in the case of Rajendra Prasad
(supra) is concerned, there cannot be a dispute in relation to the
ratio laid down in the said judgment, but it is settled in criminal
cases, even a single deviation would make a difference in the
application of ratio. In the case of Rajaram Prasad Yadav
(supra), the Apex Court laid down the principles in paragraph 17
to be borne in mind by the Court while considering the application
under Section 311 of the Code of Criminal Procedure. In the facts
of the present case, in the absence of a satisfactory explanation as
to why the applicant waited for a period of six (6) years and
completion of the examination of thirty-two (32) witnesses after
the examination of PW1 and PW2, in my opinion, the learned
Special Judge was justified in rejecting the application of the
applicant.
12. There is neither error of jurisdiction nor miscarriage of
justice calling for interference.
13. The criminal application is, therefore, rejected. No costs.
Digitally
signed by
ATUL
ATUL GANESH
GANESH KULKARNI
(AMIT BORKAR, J.)
KULKARNI Date:
2022.10.10
16:25:13
+0530
