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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPLICATION NO.167 OF 2011
Shri Vardachari s/o. Rangachari,
Aged 68 yrs., Occ. retired Administrative
Officer, M.S.E.B., r/o. Ramnagar, Nagpur. ..... APPLICANT.
// VERSUS //
State of Maharashtra,
through Anti-Corruption Bureau,
Chandrapur. ...... NON-APPLICANT.
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Mr.Mahesh Singh, Advocate for the applicant.
Mr.A.S.Parihar, A.P.P. for the respondent/State.
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CORAM : A.P. BHANGALE, J.
DATED : 21st July, 2011. ORAL JUDGMENT : 1. Heard finally by the consent of Mr. Mahesh Singh, Advocate for
the applicant and Mr.A.S.Parihar, A.P.P. for the respondent/State.
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2. By this application under Section 482 of the Code of Criminal
Procedure, the applicant has prayed for quashing and setting aside the
impugned order passed below Exh.77 on 10.3.2011 by the learned Special
Judge, Chandrapur in Special Case (ACB) No.4 of 1998. It appears that the
learned Advocate for the defence had filed an application (Exh.77) in the trial
Court contending that the accused came to know in or about the month of
December, 2010 that the first informant Ku. Surekha is involved in a series of
serious misconducts and that she was suspended on account of grave charges
against her. Departmental enquiry was also held against her and she was
found guilty. Defence had obtained information regarding misconducts of the
first informant in the third week of December, 2010 and had produced certain
documents listed with Exh.73 on 4.1.2011, which were allowed to be so
produced by the learned trial Judge. Those documents, according to the
defence, are not only relevant, but are required to be proved by the defence
to substantiate their case. The defence, therefore, prayed for examination of
certain witnesses so as to prove those documents by way of defence evidence
who were to be examined on behalf of the defence. The learned trial Judge
held that the documents received and produced by the defence on record
were in respect of the subsequent incident regarding alleged misconduct of
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the first informant and therefore, they were not relevant. According to the
learned trial Judge the witnesses proposed and to be examined as defence
witnesses were not important as far as the trial in question is concerned.
Thus, the application (Exh.77) was rejected.
3. The learned Advocate for the applicant submitted that the
documents which were allowed to be produced by the trial Judge cannot be
proved unless the defence is allowed to adduce evidence in support of its
defence. The documents could not have been produced earlier because they
were obtained under the Right to Information Act in the month of December,
2010 when the accused came to know about the misconduct of the first
informant. It is submitted that if the evidence which is proposed to be brought
on record on behalf of the defence is not allowed to be adduced, the defence
would suffer irreparable loss as defence would not be in a position to
otherwise assail credibility of complainant/first informant.
3. No reply has been filed by the learned A.P.P. to the application,
although sufficient opportunity has been granted to file the same. The learned
A.P.P. left it to the discretion of the Court.
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4. In Chapter XVIII of the Code of Criminal Procedure, in a trial before
the Court of Sessions, the trial Judge is under obligation to take all such
evidence as may be produced not only in support of the prosecution but also
which may be produced in support of the defence. When the accused is not
acquitted at the conclusion of the prosecution evidence, he is required to be
called upon to enter in his defence and adduce any evidence which he
may have in support thereof. In addition, the accused may also choose to file
Written Statement in his defence which shall be incorporated in the record of
the case. U/s.233 (3) of the Code of Criminal Procedure, when the accused
applies for the issue of any process for compelling the attendance of any
witness or the production of any document or thing, the Judge shall issue such
process unless he considers, for reasons to be recorded, that such application
should be refused on the ground that it is made for the purpose of vexation
or delay or for defeating the ends of justice. No such reason has been
mentioned by the learned trial Judge in the impugned order. The learned trial
Judge merely expressed his opinion that “considering the lapse of ten years
between the trap and the alleged misconduct of the complainant and the
misconduct of the complainant in the year 2006 having no concern with the
trap in the year 1998, I am not of the view that these witnesses are
important to decide the dispute before the Court i.e. to prove the offence
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against the accused and to decide conduct of the complainant in the year
1998.” This reason assigned by the learned trial Judge to reject the
application to adduce defence evidence is neither just nor proper. Even u/s.
311 of the Code of Criminal Procedure, the trial Court has a power to summon
any person as a witness, or examine any person in attendance, though not
summoned as a witness, or recall and re-examine any person already
examined; and the Court shall summon and examine or recall and re-examine
any such person if his evidence appears to it to be essential to the just
decision of the case. Therefore, an opportunity is required to be given to the
defence to adduce any evidence in support of its defence unless the
application for adducing additional evidence is made vexatiously or to delay or
defeat the ends of justice. Thus, applying the above test to the facts of the
present case, in my opinion, opportunity to adduce evidence ought to have
been granted to the accused to lead evidence in support of the defence.
Hence, the impugned order is set aside.
5. The applicant/accused shall be allowed to examine witnesses listed
in support of his defence. Defence shall file a list of witnesses as also a list
of documents and shall call upon the prosecution to admit or deny
genuineness of such documents as contemplated u/s. 294 of the Code of
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Criminal Procedure. If the prosecution admits genuineness of the documents,
such documents may be read in evidence in the course of trial without formal
proof. Proof of such documents may not be required in view of Section 294 of
the Code of Criminal Procedure which is intended to prevent delay which may
occur due to time consumed in examination of witnesses or further recording
of the evidence. The impugned order is set aside. The application is allowed
in the above terms. The parties are left to bear their own costs.
Copy of this judgment duly authenticated be supplied to the
learned Advocate for the applicant.
JUDGE
jais
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