{1} CWP No.472/2011 drp IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.472 OF 2011 Bapusaheb Venkatrao Kadam APPLICANT Age-52 years, Occ-Agri R/o Bhutekarwadi, Post-Rokda Sawargaon, Tq-Ahmedpur, Dist-Latur VERSUS 1. The State of Maharashtra RESPONDENTS Through Police Station, Ahmedpur 2. Chandrashekar Bapurao Birajdar Age-29 years, Occ-Service 3. Rajnarayan Bapurao Birajdar Age-37 years, Occ-Agri 4. Vikram Bapurao Birajdar Age-32 years, Occ-Agri 5. Prayagbai @ Bharatbai Bapurao Birajdar Age-70 years, Occ-Household 6. Bapurao Ganpatrao Birajdar, Age-80 years, Occ-Agri 7. Sunita Gangadhar Shinde Age-35 years, Occ-Household 8. Miss Jyoti Gangadhar Shinde, Age-19 years, Occ-Education Respondents No.2 to 8 R/o {2} CWP No.472/2011 Daithana, Tq-Shirur Anantpal, Dist-Latur 9. Shrihari Apparao Patil, Age-45 years, Occ-Business R/o Achwala, Tq-Devani, Dist-Latur. ....... Mr. H.I.Pathan, Advocate for the petitioner Mr. S.D.Kaldate, APP for respondent State Mrs.S.S.Jadhav, Advocate for respondents No.2 to 9 ....... [CORAM : A.V.POTDAR, J.] DATE: 5 th September 2011 ORAL JUDGMENT: 1. Rule. Rule made returnable forthwith. By consent of the parties, heard finally at the stage of admission itself. 2. By this petition, the petitioner-original complainant, has questioned the correctness of the order dated 17.06.2011 passed by Additional Sessions Judge, Ahmedpur, below Exhibit-70 in Sessions Case No.67/2011. Vide the impugned order the trial court has rejected the request to call a witness to prove the phone details on the ground that evidence of the prosecution is over. {3} CWP No.472/2011 3. Heard learned counsel for the respective parties. 4. It appears that on the complaint filed by the petitioner, an offence was registered against the accused persons u/s 498A, 306, 506 r/w 34 of the Indian Penal Code. It appears that after framing of the charge, the matter was listed for evidence of the prosecution and the evidence recording completed on 31.05.2011. It further appears that at that stage, an application came to be moved at Exhibit-70, u/s 311 of the Criminal Procedure Code, to call Nodal Officer of the service provider, as witness to prove the contents of call details, which came to be rejected by the trial court and hence the complainant is before this Court. 5. Perusal of the record shows that the complaint came to be lodged on 25.06.2009 where there is reference that certain calls were made by the husband of the deceased on the phone of the uncle of the deceased, for the deceased. It also appears that during the investigation supplementary statement of the complainant was recorded on 26.06.2009 wherein he has given the mobile number {4} CWP No.472/2011 of the husband of the deceased so also the mobile number of his brother, on which calls were received by the deceased. Along with the present petition, a report received from the service provider is annexed at Exhibit-B, which indicates that about 7 calls were made from the mobile allegedly used by husband of the deceased on the mobile of the brother of the complainant, for the deceased. Perusal of the impugned order indicates that the trial court has observed that the mobile number mentioned in the said report does not tally with the number of accused No.1. Apparently, there is an error in the impugned judgment, as the complainant has given the mobile number in his supplementary statement, which finds place in the report at Exhibit-B. Thus, I am of the considered view that the evidence of the Nodal Officer, which is sought to be called as a witness, is necessary to prove the call details, which would assist to come at a just conclusion. 6. In this respect, it may be useful to refer to the observations of the Apex Court in “P. Chhaganlal Daga V/s M. Sanjay Shaw” (2003) 11 SCC 486, wherein it is observed that the {5} CWP No.472/2011 if the material evidence is necessary for the just decision of the case, then that material evidence can be allowed even at the fag end of the trial, if in the opinion of the Court such evidence is essential to meet the ends of justice. 7. It may be further useful to refer the observations of this Court in “Salasar Resins V/s Sitaram Churiwala” 2006 (2) Bom.C.R. (Cri.) 39. This Court, in the said judgment has observed that there is no power u/s 311 of the Criminal Procedure Code, which prohibits the Court from allowing a party to lead evidence at any stage of the trial. 8. In the instant case, in the supplementary statement of the complainant, he has given the mobile numbers, which fact is also disclosed in the FIR, which prima facie appears to be a material evidence, which requires to be placed on record. In the premise, examination of the Nodal Officer of the service provider, u/s 311 of the Criminal Procedure Code is imperative for coming to a just conclusion. In the premise, the impugned order requires to {6} CWP No.472/2011 be quashed and set aside. 9. Consequently, the petition succeeds. The impugned order dated 07.06.2011 passed below exhibit-70 is hereby quashed and set aside and the application Exhibit-70 is allowed. Rule is made absolute as indicated above. 10. Prosecution is directed to call the said witness by issuing witness summons within 4 weeks from today and the trial court to dispose of the trial in accordance with law as expeditiously as possible. It is hereby made clear that the present petition is allowed to the extent to prove the call details by examining the Nodal Officer of the Service Provider only. Parties to act on the authenticated copy of this judgment. [A.V.POTDAR, J.] drp/B11/cwp472-11