IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL WRIT PETITION NO.1514 OF 2008. WRIT PETITION NO.1514 OF 2008. WRIT PETITION NO.1514 OF 2008. Shri Balu Raghunath Patil. ..Petitioner. versus The State of Maharashtra. ..Respondents. .... Mr.U.B. Nignot, for the Petitioner. Mr.J.P.Yagnik, APP, for the Respondent-State. .... CORAM CORAM CORAM : A.S. OKA, J. : A.S. OKA, J. : A.S. OKA, J. DATE DATE DATE : 21ST AUGUST,2008. : 21ST AUGUST,2008. : 21ST AUGUST,2008. P.C. 1. Heard the learned Counsel appearing for the Petitioner and the larned APP for the State. The Petitioner is being prosecuted for an offence punishable under section 307 of the Indian Penal Code. During the course of recording of evidence, an application was made by the Petitioner praying for recalling PW 1 and PW 7 for further cross-examination. By order dated 15th July 2008, the said Application was partly allowed and the learned Adhoc Additional Sessions Judge permitted recalling of PW 1 - Manohar Raghunath Patil. However, prayer for recalling for PW 7 was rejected. - 2 - The learned Counsel appearing for the Petitioner states that after the Advocate appearing before the Trial Court cross-examined PW 7, he received a copy of examination-in-chief of the said witness and at that time, he realised that there were various improvements and contradictions in the deposition of PW 7 and he had not put questions to the said witness on the said improvements and contradictions. He, therefore, submitted that in the interest of justice, the learned Judge ought to have recalled the PW 7 for further cross-examination. The learned APP opposed the Petition by inviting my attention to the observations made in the paragraph no.5 of the order. He submitted that there was sufficient time available to the Advocate for the Petitioner to go through the examination-in-Chief of the said witness. It is submitted that there was no ground for recalling PW 7. 2. I have considered the submissions. It will be necessary to refer the averments made in the application filed by the Petitioner. The relevant part of the Paragraph nos.3 and 4 of the said application reads thus :- - 3 - "3. The Applicant state that on 12/06/2008 at about 1.50 p.m. Examination in chief of the P.W.No.7 has completed. However for cross examination of the said witness has kept at 3.00 p.m. on 12/06/2008. Accordingly on 12/06/2008 the cross examination of P.W.No.7 has completed. At the time of cross examination of the P.W.No.7 typed copy of the Examination of the Chief was not available to the Advocate for the Applicant. The Applicant states that after the completion of the Cross Examination of the P.W.No.7 his Advocate has found various improvements and contradiction in the deposition of the P.W.No.7. 4. The Applicant states that since the copy of the Examination of chief was made available to the Applicant only after the completion of the cross examination of the P.W.No.7. Therefore, the Advocate for the Applicant has not put any question to the P.w.No.7 in respect of the contradictions and - 4 - improvements to the P.W.No.7." 3. It is true that the fact that a typed copy of the examination-in-chief of the witness was made available to the Petitioner only after completion of cross-examination is no ground to recall the witness. However, in the application it is candidly stated that only after reading a copy of examination-in-chief recorded by the Court, the Advocate for the Petitioner realised that he has not put certain important questions to the said witness. If this is the categorical case made out by the Petitioner, he cannot be allowed to suffer because his Advocate has not asked certain questions in the cross-examination. In my view, a case was made out for recalling PW 7 for further cross-examination. 4. Hence, I pass the following order :- (1) The impugned order dated 15th July 2008 is modified. (2) The Trial Court is directed to recall PW 7 - Miss Manali Patil for further - 5 - cross-examination by the Advocate for the Petitioner. The cross-examination will be in terms of what is stated in paragraph no.4 of the Miscellaneous Application No.171 of 2008. (3) It is made clear that the Advocate for the Petitioner will have to cross-examine PW 7 on the date fixed in that behalf by the Trial Court and he will not be entitled to seek adjournment. (4) The Petition is allowed in above terms, there will be no order as to costs. [ A.S.OKA, J.] A.S.OKA, J.] A.S.OKA, J.]