drp {1} Cri. Application No.1233/2011 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 1233 OF 2011 The State of Maharashtra APPLICANT VERSUS Chandrashekhar Vithal Itape & others RESPONDENTS ....... Mr. V.D.Rakh, APP for applicant State ....... [CORAM : A.V.POTDAR, J.] DATE: 3 rd May 2011 PER COURT: 1. By this application, u/s 482 r/w section 311 of the Criminal Procedure Code, the State has questioned the correctness of the order dated 23.12.2010 passed by learned Additional Sessions Judge, Ambajogai below Exhibit-72/D in Sessions Case No.2/2010. By the impugned order, the learned Sessions Court has rejected the application filed by the applicant State u/s 311 of the Criminal Procedure Code, seeking to call witness Meerabai Chate drp {2} Cri. Application No.1233/2011 for examination in the Sessions Case. 2. Heard learned APP. Perused the record so also the impugned order. 3. It appears that on the complaint of one Ratnamala, an offence was registered at Kaij police station vide Crime No. 128/2009 on 11.06.2009 for an offence punishable u/s 147, 148, 302, 365 r/w 149 of the Indian Penal Code. In short, it was contended in the complaint that when the complainant was standing at Dongaon cross road along with her husband, one vehicle came and the persons, whose names are disclosed in the complaint, forcibly took the husband of the complainant in the said vehicle and the said vehicle proceeded to Arangaon. It is further alleged that she chased the said vehicle in an auto and found the dead body of her husband at some distance. It further appears that after completion of investigation charge sheet was filed and the case was also committed to the Court of Sessions. It also appears that after framing of the charge, the parties were put to trial. It further appears that in her evidence, the complainant drp {3} Cri. Application No.1233/2011 has stated on oath that in the auto rickshaw, in which she chased the said vehicle, one Meera was also with her. Therefore, the prosecution thought it fit to call said Meera for examination before the trial court. Hence, an application (Exhibit-72) was moved before the trial court seeking to call said Meera for her examination before the trial court. The said application came to be rejected by the trial court, which order is impugned in the present application. 4. With the assistance of learned APP I have perused the record and the impugned order. Learned APP shown me the copy of the complaint lodged by said Ratnamala. Surprisingly, the complaint is conspicuously silent that after the husband of complainant was forcibly taken in the said vehicle and while the complainant was chasing the same, said Meera was present there along with the complainant. Secondly, perusal of the impugned order indicates that statement of Meera is also not recorded u/s 161 of the Criminal Procedure Code, during the course of investigation so also did not find place place in the statement of any other witness. drp {4} Cri. Application No.1233/2011 5. Section 311 of the Criminal Procedure Code reads thus- “311. Power to summon material witness, or examine person present. – Any court may, at any stage of any inquiry, trial or other proceeding under this Code, 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.” 6. Perusal of the provisions of section 311 demonstrates that any Court may, at any stage of inquiry, summon any person as a witness or examine any person, if his evidence appears to be essential for the just decision. Apparently, the complaint is silent on the point that said Meera was present along with the complainant at the time of the alleged incident. Apart from this perusal of the impugned order indicates that the learned trial court has referred the observations of this Court in the matter of “R.N.Kakkar V/s Hanif Gafoor Navivala” 1996 Cri.L.J. 365 and “State of Karnataka V/s Venugopal” 2004 Cri.L.J. 2899. It is observed in the said judgments that powers of the criminal drp {5} Cri. Application No.1233/2011 Courts, u/s 311 of the Criminal Procedure Code are very vide and the object of such powers is to enable the prosecution to adduce evidence, which will plug in the holes in its case. No party can take advantage of its own wrong. Further reference is given in the impugned order of the observations of this Court in the matter of “Karamchand Mukhi V/s Santosh Pradhan” 2004 Cri.L.J. 4380. It is observed in the said judgment that - “Examination of person as witnesses on behalf of prosecution outside list of charge sheeted witnesses application filed at the stage of examination of investigating officer whether there is negligence or mischief by the investigating officer in omitting names of petitioners from the list of charge sheeted witnesses. Not put by prosecution to investigating officer. No evidence to indicate that petitioners are eye witnesses to occurrence and willing to be examined. Rejection of application is proper” 7. It is to be noted that reference of Meera, for the first time, finds place in the evidence of complainant recorded before the trial court. The complainant has not mentioned name of Meera in the FIR nor her supplementary statement was recorded in this behalf. drp {6} Cri. Application No.1233/2011 8. Considering the rival submissions and the settled legal position, I do not find any perversity in the order impugned. Consequently, as no interference is called for in the impugned order, the present application, being sans merits, stands dismissed in liminie. [A.V.POTDAR, J.] drp/A11/criapln1233-11