1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Application No.268 of 2010 (Chandraprakash s/o Shantiprakash Sawant and others v. State of Maharashtra and another) Office Notes, Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders and Registrar's order Shri Shyam Dewani, Advocate for Applicant. Smt. T.D. Khade, APP for Respondent No.1. Shri J.M. Gandhi, Advocate for Respondent No.2. Coram : R.M. Borde, J. Dated : 30 th June, 2010 1. Heard respective counsel appearing for the parties. 2. An interlocutory order passed below Exhibit 42 on 10-2-2010 in Summary Criminal Case No.1623 of 2009 pending before the learned Chief Judicial Magistrate, Nagpur, is subjected to challenge at the instance of the applicants/original accused in this application. 3. The prosecution is launched on the information lodged by respondent No.2 for offences punishable under Sections 294, 327, 349, 350 and 379 of the Indian Penal Code. The informant, respondent No.2 herein, is the wife of the brother of accused No.1, petitioner No.1 herein. The allegations made in the FIR are as regards the trespass committed by the accused in the residential premises belonging to the informant. It is not necessary to go into the factual details of the criminal trial. Suffice it to note that during the continuance of the criminal trial, an application Exhibit 42 came 2 to be presented by the State requesting the Court to grant permission to examine one Ajay Prakash Sawant, who is the husband of the informant, as a witness on behalf of the prosecution. 4. The petitioners/original accused opposed the application contending that there is no previous statement of the witness recorded by the police, that the said person has not been cited as a witness by the prosecution earlier, that there is no reference to the alleged relinquishment-deed in the case put up by the prosecution, and as such permission cannot be granted for examining said Ajay Prakash Sawant as a witness. The learned Trial Judge, after considering the rival contentions, has accorded permission to examine the witness cited by the prosecution. 5. I have perused the order passed by the Trial Court. It transpires that the informant is claiming her entitlement to the property on the basis of the deed of relinquishment alleged to have been executed by one Shantiprasad in favour of her husband – Ajay Prakash Sawant. As stated above, Ajay Prakash Sawant is the husband of the informant and on the basis of the relinquishment-deed, the informant and her husband are claiming their entitlement to the residential premises. It is also stated that the civil litigation in respect of the entitlement to the residential premises is pending before the Civil Court. The Trial Court has taken into account all these aspects and directed the witness cited to be examined by the prosecution. 6. Section 311 of the Code of Criminal Procedure permits the Court 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, at any stage of inquiry, trial or other proceedings. The only limitation imposed in the said Section is that the evidence of such person should be essential to the just decision of the case. 3 7. In the instant case, looking to the factual background of the trial, the examination of the witness is found essential to the just decision of the trial. The satisfaction reached by the learned Trial Magistrate, after application of mind to the relevant circumstances, need not be interfered with by the higher Court. 8. The learned counsel appearing for the petitioners has placed reliance on the judgment of this Court in Smt. Gurmeet v. Smt. Renusingh and another, reported at 2009 Cri.L.J. 443. The matter before the Court in the reported judgment was in respect of the complaint initiated under Section 138 of the Negotiable Instruments Act and considering the facts and circumstances of that case, the reliance placed by the learned counsel for the petitioners on the reported judgment is misplaced. 9. Considering the factual background of the instant case, in my opinion, the discretion exercised by the Trial Court under Section 311 of the Code of Criminal Procedure in permitting the prosecution to examine the witness need not be interfered with in exercise of inherent powers of this Court. 10. The application deserves to be rejected and the same is accordingly rejected. Judge. pdl.