Bombay High Court
Nikita Rajkumar Thadani vs The State Of Maharashtra And Ors on 14 March, 2023
Bench: Bharati Dangre
(28)WP-4053-2022.doc
rajshree
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO.4053 OF 2022
Nikita Rajkumar Thadani ] .. Petitioner
vs.
State of Maharashtra & Ors. ] .. Respondents
WITH
WRIT PETITION NO.959 OF 2023
State of Maharashtra ] .. Petitioner
vs.
Abhinay Santoshkumar Saani & Ors. ] .. Respondents
Mr.Lokesh Zade for the Petitioner.
Ms.P.N. Dabholkar, APP for the State.
Mr.Chinmay Bhosale, for Respondent No.2.
Mr.Abhishek Arote i/b Satyam Nimbalkar, for Respondent Nos.3 and 5.
CORAM : BHARATI DANGRE, J
DATE : 14th March, 2023
P.C.
Writ Petition No.959/2023 is not on board. Upon mentioning
it is taken on board at Sr. No.501.
1] The present Writ Petitions are filed, calling in question the order
passed by the Additional Sessions Judge, Pune on 12.09.2022, on an
Application moved by the prosecution to issue witness summons to the
Magistrate who has recorded the statement of the victim girl under
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Section 164 of the Cr.P.C., being exhibited as Exhibit 311 in Sessions
Case No.1032/2016.
2] Casting a brief look into the events, would reveal that the
Statement of the victim girl, came to be recorded by the learned JMFC
in terms of the order dated 24.05.2016, passed by Chief Judicial
Magistrate, upon an application preferred by the prosecution for
recording her statement.
It was directed that upon recording of the statement, it shall be
send in a sealed envelope to the concerned Court as provided under
Section 164 of the Cr.P.C.
3] Accordingly, on 24.05.2016 the statement of the victim girl was
recorded. She also signed the statement, but the seal of the Magistrate
Court was not affixed, nor did the Magistrate sign on the statement, as
well as certificate certifying that the statement was recorded as per say
of the victim girl.
4] Pursuant to this, when PW 9- victim girl stepped into witness
box, when objection was taken for exhibiting the said statement, as it
was without the signature and seal of the Magistrate.
Despite this objection, the Sessions Court clearly recorded that
the witness i.e. PW 9 has identified her signature on the said statement
and had deposed before the Court that it was recorded as per her say
and in such circumstances, the Court considered it fit to exhibit the
same as Exhibit 261.
This act on the part of Sessions Court was questioned before this
Court in Writ Petition and this Court on 24.03.2022 recorded that,
prima-facie it appears that PW 9 has not identified her signature on her
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164 statement when she was confronted with the same by the
prosecution.
Apart from this, the Court recorded that in any case 164
statement could not have been exhibited and therefore it was directed
to be de-exhibited with liberty being given to the prosecution to
examine the Magistrate, if they so desire.
5] Accordingly, the prosecution moved an application before the
Additional Sessions Judge, Pune, who was seized of the Sessions
Case in the backdrop of the facts which were culled out in the order
passed by the High Court with liberty being conferred on the
prosecution to examine the Magistrate.
This Application, however, was rejected by the Court on
12.09.2022 by recording that the prosecution wants to exhibit the
Statement recorded under Section 164 through the Magistrate, but the
Statement is not signed by the Magistrate and it is typed only and
therefore, it cannot be identified and exhibited and its contents cannot
be proved. The Court opined that no useful purpose would be served
by examining the Magistrate and hence the Application was rejected.
This order is challenged by the victim as well as the State by two
distinct Petitions, which are placed before me.
6] On perusal of sequence of events and on going through the
statement of victim girl recorded under Section 164 of the Cr.P.C. in
terms of the directions of the Chief Judicial Magistrate, immediately
after the incident occurred on 27.02.2016, statement being recorded on
24.05.2016, will have its impact on the case of the prosecution and that
is why the victim was insisting that the statement should be exhibited.
Admittedly, statement recorded under Section 164 of the Cr.P.C.
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need not be exhibited and even the parties are entitled to the copies of
the said statement only after cognizance of the offence is taken.
7] However, it cannot be said that the prosecution and victim are
not justified in calling the Magistrate in the witness box, in lieu of the
liberty conferred by the High Court and I see no harm in permitting so
and trying to analyse the effect of the statement as is attempted to be
done in the impugned order, cannot be a ground for rejection of the
said request. Whether by bringing the Magistrate in the witness box,
the statement under Section 164 of the Cr.P.C. as contemplated, would
be proved or whether its contents could be said to be proved, is
ultimately the matter of deliberation by the Court, upon the respective
arguments being advanced before it.
However, the flimsy ground, which has been assigned in the
impugned order for rejecting the request, cannot be sustained.
In any case, it can be seen that the trial has now progressed and
examination of 27 witnesses is over, but trial is yet to be concluded.
Pertinent to note that from 22.11.2022, on account of this Court staying
the trial, the same is stand still.
8] In these circumstances, by setting aside the impugned order, I
deem it appropriate to grant application by the prosecution by which it
requested the Magistrate to be examined as its witness, subject to the
stipulation that it shall be done in a time-bound manner and also that
the accused persons will be at liberty to cross-examine the said
witness.
Since the trial is already expedited at the instance of this Court, I
deem it appropriate to pass the following order :-
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ORDER
a] Writ Petitions are allowed.
b] The Additional Sessions Judge, Pune, who is conducting
Sessions Case No.1032/2016 shall issue summons to the con
concerned Magistrate, making it returnable within the time bound
period, not beyond a period of 2 weeks from the date of this order.
c] On the said date, on which the summons is made
returnable, the Magistrate shall appear before the Court, and shall be
examined and shall also be subjected to cross-examination.
d] This entire process shall be conducted as a continuous
process and shall be concluded within a period of four weeks.
e] After considering the evidence of the said Magistrate, if no
further witnesses are to be examined, the Court shall proceed with the
trial and thereafter within a period of three months deliver its Judgment.
The learned APP shall communicate this order to the trial
Court, apart from writ being sent.
Writ Petition No.4053/2022 and 959/2023 are made absolute, in
above terms.
[BHARATI DANGRE, J]
