1 pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 3496 of 2010 Shaikh Abdussalam A.A. ...Petitioner Versus The State of Maharashtra & Ors. ...Respondents Mr. Sharif Shaikh i/b. Rajesh Gupta for Petitioner. Mr. P.S.Hingorani for the State-Respondent No.1 Mr.M.s.Karnik for the Respondent No.2 Mr.N.R.Bubna for Respondent Nos.3 to 7 CORAM:- R.Y.GANOO, J. DATED:- 8th JULY, 2011. P.C. 1. Heard learned Counsel for the petitioner. 2. Rule. Rule made returnable forthwith. By consent, petition is taken up for hearing. 3. I have heard learned Counsels on both sides. The present petitioner who was the Judicial Officer at Malegaon, in his capacity as Judicial Magistrate I Class had performed judicial function, which he was 2 obliged to do so and had issued process in RCC No.83 of 2007 (Old no.) SCC 3302 of 2005, as in his functioning as Judge, he thought that process is required to be issued. After that, the case was committed to the Sessions Court and the case was numbered as Sessions Case No.55 of 2009 and was assigned to the Court of District 1 and Addl. Sessions Judge, Malegaon, District Nashik. At the relevant time said Court was presided over by Respondent No.2. 4. It is seen that the present petitioner received summons to give evidence in the said Sessions Case No.55 of 2009. The present petitioner, the Judicial Officer obeyed the said summons, appeared before the learned Sessions Judge who was conducting Sessions Case No.55 of 2009 and gave evidence. Thereafter the accused had filed application for recalling of the present petitioner. That application was granted at the hands of the respondent no.2 who was then attending to Sessions Case No.55 of 2009 at Malegaon, District Nashik. The record shows that the petitioner did not appear before the Court on the date when he was summoned. However, he appeared before the court on the next date when he was not keeping well and he sought adjournment as he was not keeping well and 3 thereafter also he did not attend the court as he continued to keep unwell. 5. Thereafter this petition has been filed. The prayers in this petition are as follows : “i) This Honourable Court may graciously be pleased to stay the summon issued by the respondent no.2 and thereby recalling the petitioner to give further evidence in Sessions Case No.55 of 2009. ii) To order of respondent No.2 of issuance of summon to petitioner for further recording of evidence may be set aside. Iii) That the evidence of petitioner recorded by respondent no.2 on Sessions Case No.55 of 2009 as a PW-5 may be discarded as per the Section 80 of Indian Evidence Act. iv) Ad-interim relief in respect of prayer clause (i) in the interest of justice. v) Any other and further reliefs as this Honourable Court may deem fit and proper. vi) Petitioner humbly prays that petitioner may be protected from the evil action of respondent No.1 and necessary legal action 4 if this Honourable deem fit and proper may be taken against respondent no.2” It has been the contention of the petitioner that the issuance of summons thereby asking the petitioner to give evidence is contrary to the provisions of law. It is also the stand of the petitioner that in the course of recording of evidence of respondent no.2 in Sessions Case No.55 of 2005 the evidence is not properly recorded. The petitioner amended the petition and has brought on record instances which in his view would go to show that the evidence was not properly recorded. With these developments, the present petition is filed. 6. I am now informed that the respondent no.2 who was then Presiding as Additional Sessions Judge, at Malegaon is transferred from Malegaon. The petitioner is presently working as Judicial Officer. I have heard learned Advocates on both sides. 7. This Court is informed that the accused has withdrawn the application and hereafter the petitioner is not required to give evidence. Hence that point is also sorted out. As regards the evidence which is already recorded in Sessions Case No.55 of 2009 5 it would be proper if this court does not go into all those aspects. The party who is aggrieved on account of recording of evidence of the petitioner is free to apply for quashing of the said evidence. 8. Learned Advocate for the petitioner submitted that the petitioner wishes to withdraw various averments made against Respondent No. 2. 9. In the circumstances, mentioned aforesaid, the petition stands disposed of by passing following order. ORDER i) There is no need for the petitioner now to appear before the learned Additional Sessions Judge at Malegaon in Sessions Case No. 55 of 2005 as the accused has given up his stand for recalling of the evidence. The summons issued in that behalf is quashed. ii) If a person is aggrieved on account of recording of evidence of the petitioner on the ground that it is in violation of the provisions of Section 80 of the Indian Evidence Act, 1872 such a person is free to 6 file appropriate proceeding. If a person finds that evidence of petitioner has been recorded in an improper manner, said person is also free to file appropriate application so as to challenge the said recording of evidence. Iii) Averments made in the petition against Respondent no.2 stand withdrawn in view of statement made by Advocate for petitioner. This disposeds of prayer clause (v) of petition. c(R.Y.GANOO, J.)