1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. Criminal Application No.969/2009 (Gajanan Shaligram Metkar and five others .vrs. State of Maharashtra) ------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders. and Registrar's orders Mr. V.M. Deshpande, Advocate for applicants, Mrs. A.R. Taiwade, APP for non-applicant. .......... CORAM : P.D. KODE, J. DATED : JUNE 16, 2009 1. Heard. 2. By the present application under Section 482 of the Code of Criminal Procedure the applicants who are accused in Regular Criminal Case No.229/2003 pending on the file of Judicial Magistrate First Class, Court No.2, Achalpur have questioned the order dated 23.1.2009 passed on Exh.88 allowing application made by prosecution for examining witness by name Dadarao Shivajirao Thakre at belated stage i.e. after closure of prosecution evidence and examination of accused under Section 313 of the Code of Criminal Procedure. The 2 applicants have prayed for quashing and setting aside said order on count of same being in nature of abuse of process of law and causing grave prejudice to them. 3. The said Regular Criminal Case No.229/2003 was instituted in the said Court for the commission of offence under Sections 498-A, 323, 504, 506 r/w 34 of the Indian Penal Code as a result of charge-sheet submitted by Police Station Pathrot as a result of investigation of Crime No.61/2001 registered upon complaint lodged by Ratnakala, wife of applicant no.1. 4. Though there is substance in the submission of learned counsel for the applicants that prior to prosecution filing application at Exh.88 for examining of said Dadarao Thakre as a witness, the complainant has filed application at Exh.82 and after rejection of the same, prosecution had moved application still merely because of same further submission of learned counsel for the applicants cannot be accepted that the said facets by itself is sufficient to denote of the application made by the prosecution being not bona fide and/or the same being not outcome of the decision taken by the 3 prosecution and/or the same being preferred at the behest of the complainant and hence the application being liable to be dismissed. 5. Similarly after taking into consideration difference in between reason because of which application for similar prayer preferred by the complainant was dismissed and reason because of which prosecution application for prayer of same nature was allowed, it is difficult to find any fault with the order passed. Needless to add that due to some reason it will be also difficult to accept that rejection of an earlier application would have been a bar for prosecution for making the application for similar prayer and learned Magistrate allowing same. 6. Similarly hardly any material being on the record to come to conclusion that application made by prosecutor being not as a result of his decision but the same being only due to the decision of the complainant, a submission cannot be accepted that the same was not bona fide application preferred. Even accepting that the prosecution had not made application with such a 4 prayer earlier and have preferred the same after rejection of an application made by the complainant still in absence of any material on record a conclusion to such effect as canvassed by learned counsel of applicants cannot be drawn. 7. The same is the case regarding another submission canvassed by the learned counsel for applicants. Though it is indeed true that statement of said witness Dadarao Thakre recorded during the course of investigation reveals of his address being at Pune and as such said facets not supporting contention of prosecution in the application, of being not aware about the address of the witness at Pune and as such were unable to examine him at earlier stage, even still in fact evidence of said witness having remained to be adduced at a trial cannot be ignored and hence in event of necessity of examination of the said witness being felt necessary by the prosecution at later stage prior to conclusion of trial in view of complainant making such application or even otherwise; still the same cannot be regarded as a sound reason for not allowing the prayers in the application. The same is apparent due to 5 every criminal trial being quest for a truth and for maintaining fundamental fairness at a trial court being duly bound to give due opportunity to both sides and further being bound to make best endeavour to see that best evidence regarding relevant issues is brought before it for fair and correct decision at a trial. Needless to add that allowing the prosecution application with such a prayer being a step in furtherance of such purposes, the allowing of application can not be faulted. 8. Similarly accused being bound to get an opportunity in course of trial to meet/challenge/test evidence proposed to be adduced by examining the said witness, no credence can be given to grievance tried to be made on the count of alleged prejudice likely to be caused due to order impugned being passed at a stage of examination of accused being over. Needless to add that facet of trial being not over cannot be ignored in the said context. 9. For all the reasons stated here-in-above, it is difficult to accept that the order passed would be adversely affecting accused and/or is likely to prejudice 6 him in defence. Thus, hardly any case being made out warranting to exercise powers under Section 482 of the Code of Criminal Procedure, application deserves to be dismissed and is dismissed accordingly. Having regard to the delay made by prosecution in making relevant application, there would be no order as to costs. JUDGE Gulande