1` IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR 1. APPA No. 259/2009 in Criminal Appeal No. 386/2003 Bharat Krishnarao Mohadikar vs. State of Maharashtra, through Lakadganj Police Station Lakadganj, Nagpur. 2. APPA No. 279/2009 in Criminal Appeal No.477/2003. Narendra s/o Gopalrao Pimpale vs. State of Maharashtra, through Lakadganj Police Station, Lakadganj, Nagpur. 3. APPA No. 280/2009 in Criminal Appeal No.542/2003. Shyam s/o Vithalrao Gaikwad vs. State of Maharashtra, through Lakadganj Police Station Lakadganj, Nagpur. ----------------------------------------------------------------------------------- Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's or directions and Registrar's orders. Orders. CORAM : A.P.Lavande & Prasanna B. Varale,JJ DATE OF RESERVING : 20.11.2009 DATE OF PRONOUNCEMENT : 10.12.2009 Heard Mr. S.S.Wagh, learned counsel for the applicant in Criminal Application No. 259/2009 and Mr. S.G.Karmarkar, learned counsel for the applicants in Criminal Applications Nos. 279/09 and 280/09 and Mr. M.L. Somalwar, learned Special Public Prosecutor for the respondents in all the applications . 2. The applicant in Criminal Application No. 2` 259/09 who was accused no. 1 in Sessions Trial No. 295/98 and the applicants in Criminal Application Nos. 279/09 and 280/09 who are accused nos. 4 and 6 respectively in Sessions Trial No. 285/97 are convicted for the offences punishable under Sections 143, 147, 148, 302 read with Section 149; 307 read with Section 149; 427 read with Section 149; 452 read with section 149 and 506 read with Section 149 along with other accused seeks remand of the matter to the learned Additional Sessions Judge, Nagpur for affording proper opportunity to cross- examine prosecution witnesses and to lead defence evidence to prove their innocence. 3. According to Mr. Wagh, the matter deserves to be remanded to the trial Court for the following reasons; i) The learned Additional Sessions Judge has not given proper opportunity to the applicant during the course of the trial to cross examine P.W.3 Pancham Dashrath Nikhare, P.W. 5 Laxman Dashrath Nikhare and P.W. 10 Chandrabhagabai w/o Hari Paunikar inasmuch as the contradictions/ omissions vis-a-vis statements recorded in MPDA Proceedings against the applicant were not properly recorded nor allowed to be proved through the investigating officer. 3` ii) No reasonable opportunity was given to the applicant to cross-examine the investigating officer inasmuch as on the date fixed for cross-examination of the investigating officer i. e. on 2.12.2002 Advocate Mr. S.S. Wagh who had conducted the trial could not appear since he was sick and was unable to travel from Aurangabad to Nagpur and the prayer for adjournment on this ground was rejected by the learned Additional Sessions Judge depriving the applicant – accused no.1 an opportunity of bringing on record the contradictions and omissions vis-a-vis the previous statements of the various witnesses and from proving the station diary entries. iii) No reasonable opportunity was given to the applicant- accused no.1 to lead oral arguments. The matter was fixed for oral arguments on 2.5.2003 and Advocate Mr. S. Wagh appearing for the accused no.1 was to reach Nagpur on 2.5.2003 but all of a sudden he suffered chest pain in the morning on 1.5.2003 and was kept under observation by his doctor. The learned Judge refused adjournment and fixed the matter mentioning 4` therein that opportunity would be given only for filing written notes of arguments on 5.5.2003 and the oral request made for permitting oral arguments on 5.5.2003 was rejected by the learned Judge and as such the counsel for the applicant- accused no.1 hastily prepared written notes of arguments and filed the same on the same day. iv) The learned Judge after fixing the matter for judgment on 5.5.2003 called for station diary entry without giving notice to the applicant- accused no.1 thereby depriving the reasonable opportunity to the applicant- accused no.1 and causing serious prejudice to him. v) The application for recalling the investigating officer under Section 311 was illegally rejected by the trial Court. vi) The applicant – accused no.1 was deprived of opportunity to prove his alibi by not permitting him to recall Mahesh Shah (D.W.5) to prove the negatives of the photographs which show that on the date of offence he had participated in a morcha held at Mumbai. 5` vii) The learned Judge did not consider the cross-examinations of the prosecution witnesses but chose to disbelieve the defence witnesses on the basis of the cross- examination by the public prosecutor. 4. On behalf of the respondent reply has been filed and it has been stated that the applicant- accused no.1 was given reasonable opportunity of proving his case during the trial by permitting the cross-examination of the prosecution witnesses. It has been further stated that opportunity was given to the applicant- accused no.1 to file written arguments since his advocate was not present on the date fixed for oral arguments i.e. on 2.5.2003. It has been further stated that the learned trial Court could have relied upon the station diary without informing the parties and accused had no right to observe production of station diary before the court. 5. Insofar as the statements made by the applicant-accused no.1 that he was not given opportunity to prove the negatives of the photographs of the procession in which he is alleged to have participated, it has been stated that the application to recall Mahesh Shaha – 6` photographer was rightly rejected. 6. The applicants- accused nos. 4 and 6 seek remand of the matter to the learned trial court for cross-examination of the investigating officer on the ground that the trial before the learned trial court was not a fair trial. It has been submitted that the counsel for the applicants- accused nos. 4 and 6 could not cross-examine P.W. 13 since the counsel could not appear in the court on the date fixed for cross- examination of the Investigating Officer. It has been stated that the applicants – accused nos. 4 and 6 moved application (Exh. 369) for recalling P.W. 13 for cross-examination which was rejected by the learned trial Judge thereby depriving the applicants- accused nos. 4 and 6 opportunity of proving contradictions and omissions. 7. The prayer for remand has been opposed by Mr. Somalwar appearing on behalf of the respondents on the ground that reasonable opportunity was given to the applicants to cross- examine P.W. 15 and since they did not avail of the opportunity they were not entitled to seek remand at this stage. 8. We have carefully considered the rival submissions and perused the record. 7` 9. Perusal of the record discloses that on 2.12.2002 Advocate Mr. S.S.Wagh who had conducted the trial could not appear and matter was kept back for sometime for Advocate Mr. Mundra to cross-examine the Investigating Officer Mr. A. R. Garunge (P.W.15). The record also discloses that Advocate Mr. Mundra did not appear and as such cross-examination of the witness on behalf of the accused no.1 was closed. According to Advocate Mr. Wagh he had conducted the entire trial and he could not attend the court on 2.12.2002 since he fell sick and as such unable to travel from Aurangabad to Nagpur. It is also the case of Mr. Wagh that he had conducted entire trial and as such Advocate Mr. Mundra was not in a position to conduct the cross-examination of the investigating officer. We find merit in the said submission. Since Advocate Mr. S.S.Wagh had appeared in the trial and the matter was fixed for further cross- examination of the investigating officer. In his absence the investigating officer could not be cross-examined further and, therefore, we find merit in the contention by rejecting the prayer for recall of Investigating Officer for further cross- examination the accused was deprived of an opportunity to cross-examine the investigating officer more particularly to prove the contradictions 8` and omissions vis-a-vis the statements of various prosecution witnesses. This assumes more importance in the light of the pursis filed by the Special P.P. That the statements of the witnesses under the NPDA proceedings were recorded by the same investigating officer Mr. Ashok R. Garunge (P.W.15). 10. Moreover the record also discloses that on 2.5.2003 the matter was fixed for oral arguments. Advocate Mr. S.S. Wagh could not come to Nagpur since he suffered chest pain in the morning of 1.5.2003. On behalf of accused no.1 adjournment was sought for advancing oral arguments which was rejected and the matter was fixed on 5.5.2003 for filing written arguments. It is the case of the accused no. 1 that written arguments were hurriedly filed since the prayer for leading oral arguments was rejected on 5.5.2003. In terms of Section 234 of Code of Criminal Procedure in Sessions Trial the prosecutor as well as the Advocate for accused are entitled to submit oral arguments. The learned Judge ought to have permitted the learned Advocate appearing for accused no.1 to lead oral arguments so as to enable the accused no.1 to point out the infirmities if any in the evidence of the prosecution witnesses. By not permitting accused no.1 to advance oral 9` arguments, the learned Judge deprived the accused no.1 an opportunity to point out the infirmities in the prosecution case. Moreover, it was the first adjournment sought by accused no.1 for leading oral arguments and as such considering the facts and circumstances of the case the learned Judge ought to have given an opportunity to the Advocate of accused no. 1 to submit oral arguments. 11. Record also discloses that the accused had taken the plea of alibi and it was his case that he was not present at the scene of offence and he was present in a morcha at Mumbai on the date of incident. To prove this fact the accused no.1 examined D.W. 5 Mahesh Shaha. During the course of his evidence produced originals but could not produce negatives since they were not in his possession. Thereafter, negatives were produced on record and to prove the said negatives the application dated 10.4.2003 was filed on behalf of accused no.1 for recalling Mr. Mahesh Shaha (D.W. 5) which was rejected by the learned trial Judge on the ground that the same could not be allowed since the same would amount to filling of the lacuna in the evidence of the witnesses and the negatives were already in possession of the accused no.1. The record discloses that negatives were produced on record after D.W. 5 Mahesh 10` Shaha had deposed. It is pertinent to note that during his evidence D.W. 5 Mahesh Shaha produced only original photographs and stated that negatives of these photographs were given to Mahendra Bagwe. As such it is evident that on the day Mahesh Shaha was examined negatives of the photographs were not in possession of the accused and as such could not have been produced on that day. Therefore, in our considered opinion the order dated 10.4.2003 passed by the learned trial Judge dismissing the application for recall of the D.W. 5 Mr. Mahesh Shaha deserved to be quashed and set aside and the accused no.1 deserves to be given an opportunity to prove the said negatives by recalling Mr. Mahesh Shaha. 12. Insofar as recall of the prosecution witnesses; Pancham Dashrath Nikhare (P.W.3); Laxman Dashrath Nikhare (P.W.5); and Chandrabhagabai w/o Hari Paunikar (P.W. 10) is concerned we find that the witnesses have been cross-examined with respect to their previous statements and, therefore, no case has been made out by the accused no.1 for recalling of these witnesses. The witnesses have been extensively cross-examined on behalf of the accused no.1. Therefore, the prayer of the accused no.1 for recalling of these witnesses is rejected. 11` 13. Insofar as the application filed on behalf of accused nos. 4 and 6 for remand of the matter for cross-examination of investigating officer is concerned we find that on the date fixed for the evidence Advocate Mr. Karmarkar appearing for said accused was not present and as such cross- examination on behalf of accused nos. 4 and 6 was closed and the application filed by the accused nos. 4 and 6 for recall was also rejected. 14. In view of the above discussion, it is clear that the accused no.1 was not given a reasonable opportunity to further cross-examination of the investigating officer, P.S.I.. Ashok R. Garunge (P.W.No.15) and also to lead oral arguments in the matter. Accused no.1 was also not given reasonable opportunity to prove his defence of alibi by proving negatives of the photographs produced by Mahesh Shah (D.W. 5) by not recalling the defence witness Mahesh Shah (D.W.5). We, therefore, deem it appropriate to quash and set aside the impugned Judgment and order and remand the matter hack to the trial Court to give an opportunity to the accused no.1 to cross-examine the investigating officer Ashok R. Garunge (P.W.15) and thereafter to examine Mr. Mahesh Shaj (D.W. 5). Since the matter is remanded for further cross- 12` examination of the investigating officer Mr. A.R.Garunge (P.W. 15) on behalf of the accused no. 1 we deem it appropriate to give an opportunity to the advocate appearing on behalf of accused nos. 4 and 6 to cross-examine the investigating officer Mr. A.R. Garunge(P.W.15). Accused no.1 shall also be entitled to examine Mahesh Shah (D.W.5) to prove the negatives of the photographs produced by him. It is made clear that accused no.1 shall secure the presence of Mahesh Shah on the date fixed for recording his evidence. 15. In view of the above discussion, we pass the following order. i) The Judgment and order dated 17th May, 2003 passed by the Additional Sessions Judge, Nagpur in Sessions Trial No. 295/1998 is quashed and set aside and the matter is remanded to the learned Additional Sessions Judge, Nagpur. ii) The accused no. 1 is permitted to cross- examine investigating officer P.W. No. 15 Ashok R. Garunge. The accused no.1 is also permitted to examine the defence witness D.W. 5 Mahesh Shaha on the date fixed for recording his evidence. The learned Advocates for accused nos. 4 and 6 are also permitted to cross-examine investigating officer Mr. A.R. Garunge (P.W. 15). 13` iii) The learned Judge thereafter shall proceed to hear the arguments advanced by the Special P.P. as well as the learned advocates for the accused and dispose of the case. Since the matter pertains to the year 1997 the learned Additional Sessions Judge shall dispose of the matter expeditiously and in any case within a period of two months from the date of appearance of the accused. iv) All the accused shall be produced before the learned Additional Sessions Judge, Nagpur on 30th December, 2009 at 11.00 a.m.. 16. Criminal Application nos. 259/2009 in Criminal Appeal No. 386/2003; Criminal Application No. 279/2009 in Criminal Appeal No. 477/2003 and Criminal Application No. 280/2009 in Criminal Appeal No. 542/2003 are accordingly disposed of. JUDGE JUDGE patle 14`