1 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 APPLICATION NO.174 OF 2008 APPLICATION NO.174 OF 2008 APPLICATION NO.174 OF 2008 Gopal Shantaram Kulkarni : Applicant. versus The State of Maharashtra : Respondent. Ms.Anjali Patil for the applicant. Mrs.M.H.Mhatre, APP, for the respondent CORAM CORAM CORAM : A.P.DESHPANDE, J. : A.P.DESHPANDE, J. : A.P.DESHPANDE, J. DATED DATED DATED : JANUARY 30, 2008. : JANUARY 30, 2008. : JANUARY 30, 2008. P.C. P.C. P.C. 1. By consent of the parties, the application is taken up for final hearing and it is finally heard. 2. The applicant is facing a trial for commission of an offence under Sections 498-A and 306 of the Indian Penal Code. Sessions Case was fixed for evidence for the first time on 9th 2 January 2008. When the matter was called out, the counsel for the applicant/accused was held up in High Court as he had some matters before Justice D.G.Karnik at Sr.Nos.2 and 9 i.e. the anticipatory bail applications. Hence an application was moved by the junior advocate before the trial Court to keep back the matter. After keeping back the matter for a while, it was again called out. The trial Court recorded the evidence of two witnesses i.e. P.W.Nos.1 and 2. All the accused were represented by the same advocate. After recording the examination -in-chief, the Presiding Officer called upon the accused Nos. 1 and 2 to cross examine the witnesses who declined to cross examine. On the same day another application was moved under Section 311 of the Cr.P.C. for recalling the witnesses so as to enable the counsel for the accused to cross examine them and the rejection of the said application has given rise to filing of the present application under section 482 of the Cr.P.C. 3. Having regard to the fact that the accused are being prosecuted for commission of an offence under Sections 498-A and 306 of the 3 Indian Penal Code, declining a right to cross examine is bound to result in mis-carriage of justice. The only reason assigned by the trial court in refusing to accommodate the counsel and/or in refusing to recall the witnesses for cross examination, is that the date was fixed by consent of the counsel. 4. In my view, its too hyper technical an approach of the trial court in refusing to keep back the matter and/or in refusing to recall the witnesses for cross examination. I am of the clear view that the impugned order would result in mis-carriage of justice. I deem it appropriate to allow the present application and granting permission to the counsel for the accused to cross examine the witnesses after recalling the witnesses, would be in furtherance of cause of justice. Hence I allow the application. The impugned order passed by the trial Court dated 9th January 2008 rejecting the prayer for recalling the witnesses i.e. P.W.1 and P.W.2 for cross examination is quashed and set aside. The trial Court shall recall the P.W.1 and P.W.2 and grant an opportunity to the accused to cross examine the said witnesses. 4 Application stands disposed of in above terms. [A.P.DESHPANDE,J] [A.P.DESHPANDE,J] [A.P.DESHPANDE,J]