Bombay High Court
Subhash Laxman Rathod. vs The State Of Maharashtra. on 19 September, 2025
2025:BHC-AUG:25209
-1-
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.1659 OF 2016
(Subhash Laxman Rathod Vs. The State of Maharashtra)
Mr.Satyajit S.Bora, Advocate for the Petitioner.
Mr.S.B.Jadhav, APP for the Respondent/State.
( CORAM : SUSHIL M. GHODESWAR, J. )
RESERVED ON : 11 SEPTEMBER 2025
PRONOUNCED ON : 19 SEPTEMBER 2025
ORDER :
1. By this petition, the petitioner is praying for quashing and
setting aside the order dated 05.12.2016 below Exh.1 in ACB
No.6/2011 passed by the learned Additional Sessions Judge-1, Nanded.
2. This Court, vide order dated 21.12.2016, stayed the
proceedings of ACB No.06/2011 until further orders. Since then, the
stay is operating and the matter was not even circulated by any of the
parties.
3. The learned Advocate for the petitioner submitted that
initially one Crime No.3043/2010 came to be registered at Vazirabad
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Police Station, Dist.Nanded for the offence punishable under Sections
7, 13, (1), (d), r/w 13(2) of the Prevision of Corruption Act, 1988.
After the charge sheet was filed, the said Crime Number was converted
into ACB Case No.6/2011 and came to be committed before the court
of Additional Sessions Judge-1, Nanded for further trial. The
prosecution has examined witness No.1/Competent Authority and
Investigating Officer. Unfortunately, the complainant in this case has
expired during the pendency of the trial, therefore, evidence of the
complainant could not be adduced by the prosecution. Thereafter, the
prosecution closed their side and on behalf of the accused, evidence
was led by examining two defence witnesses i.e. D.W.No.1 Assistant
Controller Legal Metrology and D.W.No.2 Former Assistant Controller of
Metrology. The learned Advocate for the petitioner further submits
that after the evidence of the defence witnesses on behalf of accused
side was closed, the matter was kept for final arguments on
07.11.2016. Again the matter came to be adjourned on 16.11.2016.
Even on the said date, the matter came to be adjourned to 23.11.2016
for final arguments.
4. According to the learned Advocate for the petitioner, on
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23.11.2016 and 24.11.2016, the learned Advocates for the prosecution
as well as accused persons have completed their final arguments and
the matter was kept for passing judgment on 02.12.2016. However, on
02.12.2016, again the matter was adjourned to 05.12.2016. On
05.12.2016, the Court suo-moto passed an order purportedly exercising
it's powers u/s 165 of the Indian Evidence Act thereby directing the
defence witness Sanjiv Nagorao Kavare to remain present on
21.12.2016 at 11.00 a.m. with inward and outward registers of the
office at Nanded and Degloor for the month of June 2010. Being
aggrieved by the said order, the petitioner has approached this Court
under Article 227 of the Constitution of India.
5. The learned Advocate for the petitioner submitted that
while exercising powers u/s 165 of the Indian Evidence Act, the Court
has passed suo-moto order thereby completely failing to give any legal,
just and proper reasons to exercise the said powers. He has further
referred to the documents produced by defence during trial at Exhibit
Nos.52, 53 and 54, which are communications between the petitioner
and accused/Department. The said documents were referred to
defence witness No.2. The said witness identified the said documents.
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After the examination in chief of the said defence witness was over, the
prosecution had cross examined the said witness. Therefore, according
to the learned Advocate for the petitioner, there are no legal and proper
reasons to call the witness again. The learned Sessions Court also did
not have any reasons for recalling such witness. Therefore, the order
suffers from illegality.
6. The learned Advocate for the petitioner submitted that
powers u/s 165 of the Indian Evidence Act and u/s 311 of the Cr.P.C.
can be exercised by the Sessions Court at any stage of the trial.
However, to exercise such powers, the evidence which is likely to be
tendered by the witness, should be germane to the issue involved.
According to him, reading of the order discloses no plausible
explanation provided by the learned Court for calling the witness. He
also submits that the powers of recalling the witness is to be exercised
for the just decision of the case and not for the purpose of filling in the
lacunas of the prosecution side and therefore he prayed for quashing of
the impugned order.
7. Per contra, the learned APP supported the impugned order
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and prayed for dismissal of the petition.
8. After perusing the documents placed before this Court, it
has come to the notice of this Court that the learned Sessions Court was
pleased to observe in it's order that as the complainant has died and he
could not be examined or cross examined and the P.W.No.1, who was
also examined, but was not aware about the documents, which were
exhibited at Exhibit Nos. 52, 53 and 54, therefore in order to ascertain
the truth behind these documents, the Court felt it necessary to recall
the witness Sanjiv Kavare, who is working as an Assistant Controller
Legal Metrology, Nanded to remain present alongwith inward and
outward registered by issuing summons to him.
9. The submissions made by the learned Advocate for the
petitioner are significant that no plausible explanation has been given
as to why the said witness is required to be called and examined. While
exercising powers u/s 165 of the Indian Evidence Act and u/s 311 of
the Cr.P.C., the Court, while passing the order as regards recalling of the
witness, is expected to give plausible explanation and proper reasons
enabling both the sides to get fair opportunity.
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10. The Hon'ble Supreme Court in Rajaram Prasad Yadav Vs.
State of Bihar and another [(2013)14 SCC 461], while dealing with the
scope of Section 311 of the Cr.P.C., was pleased to lay down various
principles. The Apex Court, in the said judgment, was pleased to
observe that the object of Section 311 of the Cr.P.C. simultaneously
imposes a duty on the Court to determine the truth and to render a just
decision. The exercise of power under Section 311 of the Cr.P.C. should
be resorted to only with the object of finding out the truth or obtaining
proper proof for such facts, which will lead to a just and correct
decision of the case. The exercise of the said power cannot be dubbed
as filling in a lacuna in the prosecution case and further the said wide
discretionary power should be exercised judiciously and not arbitrarily.
Thus, the Hon'ble Supreme Court has stated in clear words that power
u/s 311 of the Cr.P.C. must be invoked by the Court in order to meet the
ends of justice for a strong and valid reasons and the same must be
exercised with care, caution and circumspection. The Court should
bear in mind that the fair trial entails the interest of the accused, the
victim and the society. Therefore, the grant of fair and proper
opportunities to the persons concerned, must be ensured being a
constitutional goal, as well as a human right.
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11. As on date, the learned Additional Sessions Judge-1, who
has passed the impugned order, may not be available there to re-
examine the proposed defence witness, as ordered. Therefore, the
learned Judge, who is now having the proceeding of ACB No.6/2011, is
at liberty to recall the witnesses, however, while doing so, he is
expected to give detailed reasoning for the same. Therefore, the
petition is partly allowed. The impugned order dated 05.12.2016
below Exh.1 in ACB No.6/2011 passed by the learned Additional
Sessions Judge-1, Nanded, is quashed and set aside. The learned
Judge who is now dealing with ACB No.6/2011 is therefore directed to
conclude the trial as early as possible.
12. The criminal writ petition stands disposed of in view of the
above terms.
( SUSHIL M. GHODESWAR, J.)
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