Bombay High Court
Madhav Dattaram Pawle vs The State Of Maharashtra on 8 September, 2025
2025:BHC-AUG:23794
(1) crwp830.25
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 830 OF 2025
Madhav s/o. Dattaram Pawle .. Petitioner
Age. 43 years, Occ. Business,
R/o. Palasgaon, Tq. Umari and
Dist. Nanded.
VERSUS
The State of Maharashtra .. Respondent
Through the Police Station Officer,
Umari Police Station, Tq. Umari,
Dist. Nanded.
Mr. R.M. Bhagwat h/f. Mr. Ganesh P. Shinde, Advocate for the petitioner.
Ms.A.S. Deshmukh, APP for the respondent-State.
CORAM : KISHORE C. SANT, J.
RESERVED ON : 11.08.2025
PRONOUNCED ON : 08.09.2025
ORDER :
-
01. By way of filing this petition, the petitioner-original accused
has approached this Court, challenging a common judgment and order
dated 03.04.2025, passed by the learned Additional Sessions Judge,
Bhokar, on applications Exhs. 88 and 89 in Sessions Case No. 39 of 2021.
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By way of the impugned order, the learned Sessions Judge has allowed
the applications filed by the prosecution.
02. Brief facts in short are that the accused is facing trial for the
offences punishable under sections 302, 120-B and 506 of the Indian
Penal Code. One Sambhaji Wankhede lodged an FIR with the Police
Station, Umari. It is alleged that his wife, co-accused was having extra
marital affair with the petitioner. It is alleged that because of that on
18.04.2020 they murdered mother of the informant. On the basis of
that, crime came to be registered on 25.04.2020. The petitioner came to
be arrested on 27.04.2020. Presently, the petitioner is on bail. After
filing of the charge-sheet, the case is registered as Sessions Case No. 39
of 2021. The prosecution led its evidence and filed evidence close pursis.
The matter was posted for recording statement under section 313 of the
Cr.P.C.
03. The prosecution, thereafter, filed applications Exhs. 88 and
89. It is prayed that during the course of trial, statements under section
164 of the Cr.P.C. of the informant came to be exhibited and the same
be read in evidence. It is stated that due to oversight the statement of
the informant (PW-6) under section 164 of the Cr.P.C. was not confronted
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and therefore the same be exhibited and read in evidence. It is also
prayed by application Exh.89 that statement of Supriya Wankhede, not
examined in the trial, recorded under section 164 of the Cr.P.C. also be
exhibited.
04. The learned Sessions Judge, by way of the impugned
common order was pleased to allow both the applications.
05. The learned Advocate for the petitioner vehemently argued
that when PW-6 was examined, the document which is sought to be
exhibited is not exhibited during his examination in the Court. The
accused, thus, lost opportunity to confront on the said document.
Without proving the contents of said statement, said document cannot be
exhibited and read in evidence. Another statement of daughter of the
informant recorded under section 164 of the Cr.P.C. is also sought to be
exhibited and be read in evidence without examining her in the Court on
oath. He submits that the statements cannot be exhibited and be read in
evidence in this passion. He, therefore, prays that the order needs to be
quashed and set aside.
06. Learned Advocate for the petitioner relies on the judgment in
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the case of IN RE: TO ISSUE CERTAIN GUIDELINES REGARDING
INADEQUACIES AND DEFICIENCIES IN CRIMINAL TRIALS VS. THE
STATE OF ANDHRA PRADESH AND ORS., SUO MOTO WRIT(CRL)
NO.(S) 1/2017. The Hon'ble Apex court in para 19 of the judgment
held as under :-
"19. The court is of the opinion that the Draft Rules of Criminal
Practice, 2021, (which are annexed to the present order, and shall
be read as part of it) should be hereby finalized in terms of the
above discussion. The following directions are her11 pteby issued:
(a) All High Courts shall take expeditious steps to
incorporate the said Draft Rules, 2021 as part of the rules
governing criminal trials, and ensure that the existing rules,
notifications, orders and practice directions are suitably modified,
and promulgated (wherever necessary through the Official Gazette)
within 6 months from today. If the state government's co-operation
is necessary in this regard, the approval of the concerned
department or departments, and the formal notification of the said
Draft Rules, shall be made within the said period of six months.
(b) The state governments, as well as the Union of India (in
relation to investigating agencies in its control) shall carry out
consequential amendments to their police and other manuals,
within six months from today. This direction applies, specifically in
respect of Draft Rules 1-3. The appropriate forms and guidelines
shall be brought into force, and all agencies instructed accordingly,
within six months from today."
. Learned Advocate for the petitioner also relies on judgment
of this Court at Principal seat in the case of Purshottam Ishvar Amin
Vs. Emperor reported in (1920) 10 BOM CK 0015.
(5) crwp830.25
07. The learned APP on the other hand vehemently argued that
the statements under section 164 of the Cr.P.C. are recorded by following
procedure before the Magistrate. The statements are on oath. As the
statements are recorded by the Magistrate, same can be directly used as
evidence in the Trial. Proper reasons are given in the application while
praying to exhibit the documents. She, thus, prays for dismissal of the
petition.
08. This Court has heard the parties. The learned Sessions Judge
in the impugned order has observed that in view of section 80 of the
Indian Evidence Act, there is presumption of documents produced as
record of evidence. That section provides that Court shall presume
genuineness of the document and truth of the statement. The
statements were recorded as per section 80 of the Indian Evidence Act
and thus they have presumptive value. He further observed that even if
witness Supriya is not examined, still her statement can be accepted.
09. This Court has seen Exhs. 80 and 81 of the Indian Evidence
Act and Section 164 of the Cr.P.C. Section 80 attaches presumption to
the document or statement recorded before any Judge or Magistrate. In
such case, the Court shall presume genuineness of such document.
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Section 164 of the Cr.P.C. provides for recording of confession and
statement before the Magistrate. A question, therefore, whether
statement made under section 164(5) can be taken on record and read
as evidence in the trial. No doubt, section 80 of the Evidence Act
provides that confession or statement recorded before the Magistrate, is
to be taken as genuine. Statement under section 164 of the Cr.P.C. is a
statement recorded on oath, whether that by itself makes that statement
admissible in evidence without examining author of the statement.
10. This Court finds that when witness is produced by the
prosecution, he is cross-examined by the accused to check the varsity of
the statement. Cross-examination is an integral part of fair trial. In the
present case PW-6 was examined before the Court and still his statement
under section 164 was not exhibited through him. There is no reason as
to why it was not produced in evidence. Certainly, it is for that the
accused could not cross-examine the said witness on that document. So
far as case of Priyanka is concerned, she is not examined at all in the
trial. The accused is, therefore, not in a position even to confront her in
cross-examination. It is trite law that no evidence can be directly taken
on record without giving an accused an opportunity to cross-examine
such witness. In the present case it is clearly seen that the accused is
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not given an opportunity to cross-examine the persons whose statements
are sought to be exhibited and proved. The statement under section 164
of the Cr.P.C. though is recorded by the Magistrate; it is still during the
course of investigation and not in the proceeding.
11. Merely because the statement is recorded by the Magistrate
is no reason to exhibit the document directly. When opportunity is not
given to the accused to confront the witness, it would be unfair to rely
upon such evidence. In the present case, it is also not clear as to why
PW-6 was not shown the documents i.e. his statement under section 164
of the Cr.P.C. So far as witness Priyanka is concerned, it is only stated
that she is young student and residing at different place, is no reason
not to examine her and more so, to take her statement under section
164 of the Cr.P.C. as evidence without examining her. This Court finds
that the reasoning of the Sessions Court is not proper and correct. In
any case to exhibit the documents without giving opportunity to the
accused is totally against fair trial. This Court finds substance in
submissions of learned Advocate for the petitioner. This Court is clearly
of the opinion that the learned Sessions Judge has erred in passing the
order. The order deserves to be quashed and set aside.
(8) crwp830.25
12. In the result, this Criminal Petition is allowed. The impugned
order dated 03.04.2025 passed by the learned Additional Sessions Judge,
Bhokar, Dist. Nanded below Exhs. 88 and 89 in Sessions Case No. 39 of
2021 is quashed and set aside.
[KISHORE C. SANT, J.]
snk/2025/Sep25/crwp830.25
