Dinesh S/O Lala Solanke vs State Of Mah. Thr. Anti Corruption ...
2023 Latest Caselaw 822 Bom

                                         1                            APL1563.22 (J).odt


     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
              : NAGPUR BENCH : NAGPUR.


        CRIMINAL APPLICATION (APL) NO. 1563 OF 2022


APPLICANT                  : Dinesh S/o Lala Solanke,
                             Aged about 65 years, Occu. Retired,
                             R/o Plot no.18, Vitthal Nagar,
                             Pimple Road, Amalner, Tq. Amalner,
                             Dist. Jalgaon - Khandesh.

                                             VERSUS

NON-APPLICANT : State of Maharashtra,
                Through Anti Corruption Bureau,
                Akola, Tq. & Dist. Akola.

----------------------------------------------------------------------------------------------
          Mr. S. V. Sirpurkar, Advocate for the applicant.
          Mr. S. A. Ashirgade, A. P. P. for the non-applicant/State.
----------------------------------------------------------------------------------------------

                        CORAM : G. A. SANAP, J.

DATE : JANUARY 24, 2023.

ORAL JUDGMENT

1. Heard.

2. ADMIT. Taken up for final disposal by consent of the

learned advocates for the parties.

2 APL1563.22 (J).odt

3. In this application, challenge is to the order dated

20.09.2022 passed by the learned Additional Sessions Judge, Akola

below application (Exh.190) in Special Case No. 02/2008, whereby

the learned Judge was pleased to reject the prayer made by the

applicant/accused to recall the Sanctioning Authority (PW3) for

further cross-examination.

4. In the aforesaid Special Case, two accused are facing the

prosecution for commission of offences punishable under Sections 7,

13(1)(d) read with Section 13(2) of the Prevention of Corruption Act,

1988. One Anil Vitthalrao Bonde is the informant. In view of the

information, a trap was led. On the basis of the material collected

during the course of investigation, charge-sheet was filed. Initially, the

prosecution examined five witnesses. Statement of accused under

Section 313 of the Code of Criminal Procedure was recorded. Accused

adduced their defence evidence. After this, the prosecution made an

application under Section 311 of the Cr.P.C. seeking leave to examine

two more witnesses. The application was allowed. Thereafter, the

prosecution examined PW6 and PW7. These witnesses have been 3 APL1563.22 (J).odt

cross-examined on behalf of the accused. Learned advocate appearing

for the accused, after completion of recording of evidence of PW6 and

PW7, made an application (Exh.190) on 17.09.2022 under Section 311

of the Cr. P.C. to recall PW3 and PW4 for cross-examination. It was

stated in the application that recall of PW4 is necessary to prove the

omissions and contradictions appearing in the evidence of PW6 and

PW7. As far as PW3 is concerned, no specific statement was made or

no reason was stated in the application for his recall.

5. The prosecution opposed the application (Exh.190).

Learned Additional Sessions Judge, vide order dated 20.09.2022 was

pleased to partly allow the application. The prayer for recall of PW4

was allowed, whereas the prayer for recall of PW3 was rejected. This

order of rejection of prayer to recall PW3 is challenged in this

application.

6. I have heard Mr. S. V. Sirpurkar, learned advocate for the

applicant and Mr. S. A. Ashirgade, learned Additional Public

Prosecutor for the non-applicant/State. Perused the record and 4 APL1563.22 (J).odt

proceedings.

7. Learned advocate for the applicant in all fairness conceded

that in the application, the reason has not been pleaded for recalling

PW3. Learned advocate submitted that reason was not stated because

mentioning the reason in the application could have given an advance

notice to the witness and therefore, he would have come prepared on

all aspects and frustrated the purpose of recall. Learned advocate took

me through the evidence on record to bring home his point that

recalling of PW3 is necessary and his further cross-examination would

be necessary for just decision of the case on merits.

8. Learned Additional Public Prosecutor submitted that the

powers under Section 311 are discretionary powers. Learned APP took

me through the order passed by the learned Additional Sessions Judge

and pointed out that cogent reasons have been recorded by the learned

Judge for rejecting the application qua PW3. Learned APP submitted

that in the teeth of the facts stated in the application (Exh.190), if the

learned Judge had granted the application in respect of PW3, then that 5 APL1563.22 (J).odt

would have given a chance to the parties to contend that said order was

without application of mind. Learned APP submitted that

discretionary powers cannot be exercised routinely and merely for

asking.

9. In order to appreciate the rival submissions, I have gone

through the record and proceedings. Undisputedly, PW3 is the

Sanctioning Authority. The role of Sanctioning Authority is limited. It

has no role to play in the actual investigation. The Sanctioning

Authority has to apply its mind to the material submitted to it by the

Investigating Officer for the purpose of recording the satisfaction for

either according or rejecting the sanction.

10. Perusal of the application would show that as far as PW4

is concerned, it was stated that he being the Investigating Officer,

would be required to be recalled to prove the omissions and

contradictions brought on record in the evidence of subsequently

examined witnesses i.e. PW6 and PW7. Learned Judge found

substance in this contention and granted application (Exh.190) to that 6 APL1563.22 (J).odt

extent. Learned Judge has observed in his order that no reasons were

stated in the application for recalling PW3. Learned Judge has

observed that without stating reasons, the application for recall cannot

be granted. On going through the record, I am of the view that no

material has been placed on record to find fault with the order passed

by the learned Additional Sessions Judge.

11. I am conscious of the fact that the Court, when called

upon to exercise the powers under Section 311 of the Cr.P.C., must see

that the discretion is exercised in such a manner that it serves the cause

of justice. It is to be noted that as per Section 311 Cr.P.C., before such

power is exercised, on the basis of the facts placed on record as well as

the material on record, the Court must be satisfied that recalling of

witness for cross-examination or re-examination is essential for the just

decision of the case.

12. It, therefore, goes without saying that the party seeking

recall of the witness under Section 311 of the Cr.P.C. is expected at least

to state the reasons or to give background for recalling the witness for 7 APL1563.22 (J).odt

cross-examination or re-examination. The Court is required to record

the reasons either for granting the prayer or for rejecting the prayer. If

the order rejecting the prayer is challenged, the Court seized with the

matter is required to see non-application of mind, if any, vis-a-vis the

reasons stated in the application for recalling the witness. It, therefore,

goes without saying that the power cannot be exercised merely for

asking and in a routine manner.

13. In the case on hand, no reasons have been stated in the

application for recalling PW3 for further cross-examination. It is,

necessary to state that simply because of examination of two more

witnesses i.e. PW6 and PW7, the accused would not get right to cross-

examine PW3. His cross-examination would have been warranted, if

some relevant material, having bearing with the evidence of PW3 was

brought in their evidence. On going through the record, I am

convinced that the role of the Sanctioning Authority was confined to

the application of mind to the record forwarded to it by the

Investigating Officer. Evidence of PW6 and PW7, as can be seen from

the record, is not touching the aspect of sanction. Therefore, I am 8 APL1563.22 (J).odt

satisfied that the well reasoned order passed by the learned Additional

Sessions Judge, Akola does not require any interference. Accordingly,

the criminal application is rejected.

( G. A. SANAP, J. ) Diwale

Digitally signed byPARAG PRABHAKARRAO DIWALE Signing Date:25.01.2023 18:24