1 CR.WP NO.165 OF 2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 165 OF 2010 Date of decision:11/10/2011 For approval and signature HON'BLE MR.JUSTICE A.H.JOSHI 1. Whether the Reporters of Local Papers Yes may be allowed to see the Judgment ? 2. To be referred to the Reporter or not ? No 3. Whether Their Lordships wish to see No. the fair copy of the Judgment ? 4. Whether this case involves a substantial? No. question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder ? 5. Whether it is to be circulated to the No. Civil Judges ? 6. Whether the case involves an important No question of law and whether a copy of the Order should be sent to Bombay, Goa and Nagpur Office ? Private Secretary AGP/office/165-10crwp 2 CR.WP NO.165 OF 2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.165 OF 2010 Shri Jitendra Pralhad Ghotale, Age 37 years, Occupation: Service Resident of: At Post Tavashigad, Taluka Lohara, District Osmanabad. ...PETITIONER VERSUS The State of Maharashtra. ...RESPONDENT ... Mr.Mukul Kulkarni, Adv., for the petitioner. Mr.N.B.Patil, APP for respondent State. ... CORAM: A.H.JOSHI, J. Date:Oct.,11th, 2011 *** ORAL JUDGMENT: 1. Rule. Rule is made returnable forthwith and is heard by consent. 2. In a State case under Sections 324, 504 of IPC, the accused persons filed an application for recalling all the witnesses; as, on the relevant day when the witnesses were cross 3 CR.WP NO.165 OF 2010 examined, senior Advocate was not available and the junior Advocate had conducted the cross examination. 3. By application (Exh.29, page No.18 of the petition), the accused persons came with a request which, ad verbatim, is quoted below:- "2. That during the course of trial, the prosecution has examined in all six- witnesses. PW 1 complainant Mahesh Ghotale has been examined at Exh.15 out on the day of trial the accused could not attend the Hon'ble Court in time but attended exactly of the commencement of trial the accused has given instructions & informations to his Advocate Shri Chincholikar but on that day Shri Chincholikar was engaged in another court. Therefore, the Assistant Advocate Sow.Ghodke conducted the cross- examination as the trial commenced. The accused could not give instructions to Adv. Sow.Ghodke. Hence, in the light of instructions & information those which have been given to Shri Chincholikar the cross-examination could not be held in detail. 3. That, as the cross examination of the complainant the main, star witness, of the prosecution has been completed by the Assistant Advocate the further cross examination of all the witnesses could not be held in detail more particularly in the light of contradicting to the testimony of the complainant the, main witness. Therefore, it is just and proper in the interest of justice to recall all the witnesses for cross examination by invoking powers U/sec.311 of Cr.P.C." 4 CR.WP NO.165 OF 2010 3. According to the accused persons, the cross examination could not be held in detail, though it ought to have been. 4. The application was rejected by the learned Judicial Magistrate, First Class, by order dated 5.1.2009. The said order is challenged in this petition. It is seen that though this petition was filed some time in Feb.,2010, it has remained pending all along, without any stay order. Today, learned Advocate Mr.Mukul Kulkarni states that though stay was not granted by this Court, the trial has not proceeded; and the case is pending at the same stage i.e. of recording statements of accused under Section 313 of Cr.P.C., and the next date is fixed on 3rd Nov., 2011. 5. After hearing both the sides, this Court finds that there is delay at every stage i.e. in filing the application for recalling of the witnesses and then filing the petition against the order declining to recall the witnesses. 6. Moreover, as can be judged from experience that the learned Advocate appearing for the accused did not want the case before a 5 CR.WP NO.165 OF 2010 particular Judge of trial Court or was otherwise interested in delaying, and therefore the case did not proceed. 7. By this day, the order impugned is more than two and half years old and, on the facts of the case, only because a junior Advocate has cross examined the witness, with which senior Advocate is not satisfied, further cross examination cannot be allowed. 8. Moreover, other witnesses are cross examined by senior Advocate. When the cross examination of the complainant was perceived to be un-satisfactory, before other witnesses could enter in the witness box, an application for recalling of the witness (complainant) could have been made. 9. In this situation, the petition does not deserve any interference and is dismissed. (A.H.JOSHI) JUDGE ... AGP/165-10crwp