Bombay High Court
Pravin Begum W/O Abdul Rahim Khan And ... vs The State Of Maharashtra on 3 March, 2025
2025:BHC-AUG:5941
937Cri.WP1304-24.odt.Further examination
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
937 CRIMINAL WRIT PETITION NO.1304 OF 2024
1. Parvin Begum W/o Abdul Rahim Khan,
Age: 43 years, Occu: Household
2. Johra Begum Abdul Rashid Khan,
Age: 58 years, Occu: Household
3. Abdul Rashid Khan S/o Pasha Khan,
Age: 72 years, Occu: Business ....PETITIONERS
VERSUS
The State of Maharashtra,
Through Police Station, Mudhkhed.
Tq. Mudkhed, Dist. Nanded. ....RESPONDENT
...
Mr. S. S. Gangakhedkar, Advocate for the Petitioners
Ms. Ashlesha S. Deshmukh, APP for the Respondent - State
...
CORAM : Y. G. KHOBRAGADE, J.
RESERVED ON : 14.02.2025
PRONOUNCED ON : 03.03.2025
JUDGMENT :
-
1. Rule. Rule made returnable forthwith and with
consent of both the sides, the matter is heard finally.
2. By the present Petition, under Article 227 of the
Constitution of India, the Petitioners take exception to the order
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dated 29.06.2024, passed below Exh.180 in R.C.C. No.370 of 2009 by
the learned Judicial Magistrate First Class, Mudkhed, thereby
permitted the prosecution to re-examine the witness PW-3 to prove
the documents i.e. Articles 1 to 101 enlisted in Exh.147.
3. Mr. Gangakhedkar, the learned counsel for the Petitioners
canvassed that, on 26.10.2007, the informant Haibati Rakhmaji
Mandave lodged a report alleging that, the Petitioner No.3, Abdul
Rashid Khan S/o. Pasha Khan was working as EDMC in Mudkhed Post
Office. The Petitioner No. 2, Zohra Begum Abdul Rashid Khan was
appointed as a Women Regional Savings Agent under the scheme of
'Mahila Pradhan Kshetriya Bachat Yojana' as per licence
No.NND1404, granted by the District Magistrate, Nanded on
29.08.1994. As per said scheme, the petitioner No. 2, has to collect
recurring deposits from the account holders and she required to
deposit the said collected amount with the Post Office in the accounts
of the recurring depositors and to make entries. The post office had
issued passbooks to recurring depositors. It is further alleged that,
during the period starting from 09.02.2004 to 28.08.2006, the
Petitioner No. 2, Johra Begum Abdul Rashid Khan and the Petitioner
No. 3, Abdul Khan collected huge amount being Agents and signed
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the cards in Urdu, but they did not deposit the said amount in the
Post Office and thereby misappropriated huge amount of the
depositors and cheated them. It is further alleged that, the accused
Nos. 2 & 3 are husband and wife. Both have retained the passbooks
of the depositors with them. The Petitioner No. 3, Abdul Khan
appointed himself as the Authorized person and forged documents for
withdrawing money and got sanctioned the amount with interest
from Shri Ashok Narhar Doke, the then Sub Post Master. The
Petitioner No. 3 withdrawn the entire amount with interest and
misappropriated the same and closed R.D. accounts of the depositers.
4. According to the informant as per Schedule "A" list, the
accused withdrawn an amount of Rs. 1,64,811/- from the account of
15 Recurring Deposit Account holders (by forging the duplicate
signatures of the account holders) and closed the accounts without
consent of the account holders, so also continued the collections
from the account holders, but failed to deposit the collected amount
i.e. of Rs. 86,000/- with Post Office in R D accounts of respective
account holders. The Accused No. 3 failed to return the Passbooks to
the account holders. As per Schedule "B", the accused withdrawn an
amount of Rs. 39,952/- from the account of 9 Recurring Deposit
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account holders (by forging the duplicate signatures of the account
holders) and closed the accounts without consent of the account
holders, and continued the collections from the account holders, but
failed to deposit the collected amount i.e. Rs.18,800/-with the post
office. It is further alleged that, the Petitioner No. 2 collected an
amount of Rs.77,100/- towards recurring deposits from 35 depositors
but did not deposit the same with the Post Office in their accounts.
The petitioner No. 2 used said amount for her personal benefit and
defrauded the Post Office as well as the depositors.
5. Similarly, as per Schedule "D" the Petitioner No.3,
accused Abdul Rashid Khan S/o. Pasha Khan in connivance with the
Accused No.1, Parvin Begum Khan committed fraud of Rs.79,800/- by
withdrawing the amount under the fake signature of 34 recurring
depositors. So also, the Petitioner No.1, Parvin Begum Khan
withdrawn the amount of Rs. 4,66,463/- from 93 R. D. accounts
under the fake and fabricated documents. Therefore, on the basis of
said report, Crime bearing No. I-59 of 2007 was registered against the
present Petitioners for the offences punishable under Section 420,
421, 403, 409, 464, 468, read with Section 34 of the Indian Penal
code, 1860.
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6. Thereafter, the Investigating Officer conducted an
investigation and seized several documents under separate list:
Schedule A, B, C and D. The I.O. recorded statements of witnesses
and issued a warrant for seizure of the documents. The documents
were sent to the handwriting expert for examination. On completion
of investigation, a charge-sheet came to be filed against the present
Petitioners. The learned trial Court framed charges against the
present petitioners/accused for the offences punishable under
Sections 420, 421, 403, 409, 464, 468, read with Section 34 of Indian
Penal code, 1860.
7. In order to prove the charges, the prosecution examined
three witnesses. On 03.01.2024, the PW-3, Haybati Rakhmaji Mandve
entered into the witness box and deposed at Exh.146. PW-3 proved
Exh.147 i.e., the seizure panchanama of documents and Exh.149
Appointment Order of the Petitioner No.3, Abdul Rashid Khan as an
agent. The PW-3 also proved documents Exhs. 150 and 151 i.e.,
Official licence/letter granted by the District Collector, Nanded
regarding appointment of Petitioner No. 2, Johra Begum and
Petitioner No. 1 Parvin Begum as R D Agent. The prosecution proved
Exh. 155 SB Form No. 7, Exh.156 five specimen signatures of
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Mohammad Iliyas Exh.158, Application submitted by Ajij Beg Ismail
Beg and his five specimen signatures Exh.159, Original copy of
sample signature register of Ajij Beg Exh.160 as well as other various
documents.
8. On face of record, it appears that, prior to deposition of
PW-3, copies of Schedule A to D total 1 to 101 were sent for expert's
examination and those were not available when the PW-3 deposed
her examination-in-chief. However, only the list of documents 1 to
101 is exhibited as Exh. 147 and the documents below the list were
not exhibited. Thereafter, PW-3 undergone cross-examination
conducted on behalf of the petitioners/accused. On 30.04.2024, the
cross-examination of PW-3 was completed.
9. However, after cross-examination is over, the prosecution
filed Exh.180 and prayed for permission to re-examine PW-3 to prove
documents 1 to 101 produced under Schedule A to D Exh.174
because those documents were not referred to PW-3. Additionally,
some documents under Schedules A to D were sent to the Chemical
Examiner, which were seized during the course of investigation and
filed along with the charge sheet, but due to oversight, those
documents were not referred to the witness.
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10. On 29.06.2024, the learned Judicial Magistrate, Mudkhed
passed the impugned order below Exh.180 and permitted the
prosecution to re-examine PW-3 in respect of documents filed along
with Report Exh.147 enlisted as Articles 1 to 101. Being aggrieved by
the said order, the Petitioners have filed the present Petition.
11. The learned counsel for the petitioners canvassed that,
the prosecution failed to raise issue of ambiguity/oversight at the
time of examination of PW-3 and no grounds are set out for re-
examination of PW-3. Though said documents were available on
record but the Public Prosecutor did not refer to the PW-3 and no
such documents produced prior to entering the PW-3 in witness box.
Therefore, the lacuna left in the evidence cannot be permitted to fill
up by the prosecution and the prosecution has no right to recall and
re-examine the witness. However, the learned trial court failed to
consider that, no ambiguity left in the evidence of PW-3 and the
witness cannot be recalled and re-examined. Therefore, the impugned
order is illegal and bad in law, hence prayed to quash and set aside
the same.
12. It is further canvassed that, the learned trial court failed
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to appreciate scope of Section 311 of the Cr.P.C, which does not
permit re-examination of a witness, when documents, which are part
of the record, are not referred to the witness. The purpose of re-
examination of the witness is to clarify some ambiguities remained in
evidence, but the documents which are not referred in the
examination-in-chief cannot be permitted to refer to the witness for
re-examination. However, the learned trial court wrongly passed the
impugned order without considering the scope of Section 311 of
Cr.P.C. and Section 138 of the Evidence Act, hence, prayed to quash
and set aside the impugned order.
13. In support of these submissions, the learned counsel for
the Petitioners relied on the following cases as under:
(i) Capitol Art House (P) Ltd. Vs. Neha Datta , 2022 SCC
Online Del 1746, wherein it is held that, when there is no
ambiguity in the answers given by the witness that requires
explanation through re-examination, hence, the re-examination
cannot be used to give chance to the witness to undo the
statement of the witness made in cross-examination and fill in
the lacunae in evidence.
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(ii) Rammi Alias Rameshwar V. State of Madhya Pradesh
(1999) 8 SCC 649, wherein the Hon'ble Supreme Court
considered the scope of Section 138 of the Evidence Act and
held in paragraph Nos. 17 , 18 and 19 as under:
"17. There is an erroneous impression that re-examination
should be confined to clarification of ambiguities which have
been brought down in cross-examination. No doubt, ambiguities
can be resolved through re-examination. But that is not the only
function of the re-examiner. If the party who called the witness
feels that explanation is required for any matter referred to in
cross-examination he has the liberty to put any question in re-
examination to get the explanation. The Public Prosecutor
should formulate his questions for that purpose. Explanation
may be required either when the ambiguity remains regarding
any answer elicited during cross-examination or even otherwise.
If the Public Prosecutor feels that certain answers require more
elucidation from the witness he has the freedom and the right to
put such questions as he deems necessary for that purpose,
subject of course to the control of the court in accordance with
the other provisions. But the court cannot direct him to confine
his questions to ambiguities alone which arose in cross-
examination.
18. Even if the Public Prosecutor feels that new matters
should be elicited from the witness he can do so, in which case
the only requirement is that he must secure permission of the
court. If the court thinks that such new matters are necessary for
proving any material fact, courts must be liberal in granting
permission to put necessary questions.
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19. A Public Prosecutor who is attentive during cross-
examination cannot but be sensitive to discern which answer in
cross-examination requires explanation. An efficient Public
Prosecutor would gather up such answers falling from the mouth
of a witness during cross-examination and formulate necessary
questions to be put in re-examination. There is no warrant that
re-examination should be limited to one or two questions. If the
exigency requires any number of questions can be asked in re-
examination."
14. Per contra, the learned APP submits that, the documents
filed along-with the charge-sheet under Exh.147, Schedule A to D
total 1 to 101, however, during examination-in-chief, the learned
prosecutor only referred the list of annexures/Schedule A, B, C and D
i.e. list of documents but due to oversight of the public prosecutor, the
documents are not exhibited and some documents were sent for
Chemical Analysis. After receipt of said documents, the prosecution
produced the documents on 04.03.2024 under List Exh.177 which
was produced after the examination-in-chief recording of PW-3.
Therefore, as per Section 311 of Cr.P.C. and Section 138 of the
Evidence Act, the prosecution has every right to re-examine PW-3 and
refer those documents which were produced alongwith charge-sheet
and were sent to the Chemical Analysis. Therefore, after re-
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examination of PW-3, the accused persons have right to cross-
examine the witness.
15. It is further canvassed that, the documents produced
under Exh.177 are already provided to the accused persons i.e.,
Petitioners with the charge-sheet, so also, in cross-examination, the
defence counsel referred said documents to the PW-3. Therefore, the
impugned order is just and proper, hence prayed for dismissal of the
Petition.
16. Needless to say that, PW-3 entered into witness box on
01.03.2024 and his Examination-in-chief recorded at Exh.146. The
evidence of PW-3 shows that exhibiting certain documents including
Schedule (list of documents A to D), however, documents produced
under list Exh. 147 were not referred to PW-3. On perusal of
Schedules A to D, the list of account holders, dates of account
opening, recurring deposit accounts and balances shown against
recurring deposit holders were noted. Other documents pertaining to
accounts and withdrawal form etc., were not referred to PW-3
because those documents along with charge-sheet were produced to
the Chemical Analyser.
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17. It is a matter of record that, the defence counsel
conducted cross-examination of PW-3 and concluded cross-
examination on 30.04.2024 and soon after cross-examination is over,
the prosecution filed Exh.180 application seeking permission to re-
examine the PW-3 on ground that some documents under Exh.147
were sent to the C.A., hence, said documents were not available at the
time of examination of PW-3, however, some documents were not
referred to PW-3 due to the oversight of the learned Public Prosecutor.
After examination-in-chief of PW-3 documents were received from the
Chemical-analysis and thereafter the same were produced on record
under Exh.147.
18. It is not the case of the Petitioners accused that
documents under Exh. 147 were not supplied to them alongwith
charge-sheet. However after receiving documents under Exh.147 are
filed after recording examination-in-chief of the PW-3. Therefore, it
cannot be said that the prosecution wanted to re-examine the PW-3 to
fill up the lacuna.
19. Needless to say that, the prosecution has no intention to
get any explanation for the answers given by PW-3 in cross-
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examination or to withdraw any admission given in cross-
examination. However, the prosecution wanted to re-examine the
PW-3 in order to refer documents which were seized during the
course of investigation and produced with charge-sheet, but those
documents were sent to the Chemical analysis and received on
04.03.2024 subsequent to recording of examination-in-chief of the
PW-3.
20. In the case of Raja Ram Prasad Yadav Vs. State of Bihar
and Another, A.I.R. 2013 (SC) 3081, it is held that invocation of
Section 311 of Cr.P.C. and its application in a particular case can be
ordered by the Court, only by bearing in mind the object and purport
of the said provisions, namely, for achieving a just decision of the
case. The power vested under the said provisions is made available to
any court at any stage in any inquiry or trial or other proceedings
initiated under the Code for the purpose of summoning any person as
a witness or for examining any persons in attendance, even though
not summoned as witnesses or to re-call or re-examine any person in
attendance. In so far as recalling and re-examining of any person
already examined, the Court must necessarily consider and ensure
that such re-call and re-examination of any person, appears in the
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view of the court to be essential for the just decision of the case.
21. In case of Shailendra Kumar Vs. State of Bihar, A.I.R.
2002 (Supreme Court) 270, it is held that, if there is any negligence,
latches or mistake by not examining material witness, the Courts
function to render just decision by examining such witness at any
stage is not, in any way impaired.
22. In case of Ramasami Vs. Sriniwasan 1987 (3) Crimes 89
Madras, it is held that the criminal court is not just umpire to deal
only the material brought by the parties before it. The court has to
play an active role in the administration of criminal jurisprudence.
Though, it is not normal duty of the court to collect evidence, in cases
where justice requires, the Court has power to further inquire into the
matter in order to ascertain the truth.
23. In case of Rama Paswan Vs. State of Jhharkhand, 2007
Crl. L.J. 2750, it is held that it would not be improper, the exercise of
the power of the Court to summon a witness under the Section
merely because the evidence supports the case of the prosecution and
not that of the accused. The Section is a general Section, which
applies to all proceedings, Inquiries and trials under the Court and
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empowers the Magistrate to issue summons to any witness at any
stage of such proceedings, trial or inquiry.
24. In case of UT of Dadra and Nagar Haveli Vs.
FatehSinhMohansinh Chauhan, (2006) 7 SCC 529, wherein the
Hon'ble Supreme Court considered the powers under Section 311 of
Cr.P.C and held that the lacunae in prosecution case is not to be
equated with the fallout of an oversight committed by a Public
Prosecutor during trial, either in producing relevant materials or
eliciting relevant answers from witnesses. The adage "to err is
human" is the recognition of the possibility of making mistakes to
which humans are prone. A corollary of any such laches or mistakes
during the conducting of a case cannot be understood as a lacuna
which a Court cannot fill up.
25. In case of Mina Lalita Vs. State of Orissa, (2013) 16 SCC
173, the Hon'ble Supreme Court observed that it is the duty of the
Criminal court to allow the prosecution to correct an error in the
interest of justice. Re-examining a witness already examined for the
purpose of finding out the truth in order to enable the Court to arrive
at a just decision of the case cannot be construed as filling up the
lacuna in prosecution case.
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26. Coming back to the case in hand, the learned trial court
passed the impugned order on 29.06.2024 and permitted the
prosecution to re-examine PW-3. On perusal of the impugned order it
appears that, after completion of examination-in-chief of the PW-3,
the police deposited certain documents along with report Exh.147
and during the course of examination-in-chief of PW-3 some
documents were not available with the prosecution though said
documents are included in charge-sheet and some enlisted in Exh.147
were not referred to PW-3 during examination-in-chief because the
same were referred to the Chemical Analysis. The documents along
with Schedule A to D seized under panchanama Exh.148 during the
course of investigation and supplied to the Petitioners / accused.
Therefore, those documents are not foreign and unknown to the
petitioners/accused. Therefore, considering the scope of Section 311
of Cr.P.C. coupled with Section 138 of the Evidence Act, the learned
trial court granted permission to re-examine the PW-3 as per law laid
down in Rama Pawsan cited (supra), which does not appear to be
perverse, illegal and bad in law, hence, no interference is called at the
hands of this Court.
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27. In view of above discussion, the Criminal Writ Petition is
dismissed. Accordingly, Rule is discharged. No order as to costs. The
interim order granted on 30.07.2024 is hereby vacated.
[ Y. G. KHOBRAGADE, J. ]
28. After the judgment is pronounced, the learned counsel for
the Petitioner seeks for extension of interim order granted by this
Court on 30.07.2024. However, I have not find substantial ground for
extension of interim order. Hence, prayer is turned down.
[ Y. G. KHOBRAGADE, J. ]
HRJadhav
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