1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 137 OF 2010 Office Notes,Office Memoranda of Coram,appearances, Court's orders or directions and Registrar's orders Court's or Judge's orders Coram: P.R. Borkar, J. Date : February 18, 2010 1. Heard Smt. Anjali Bajpai Dube, learned Advocate for petitioners. 2. By this petition, the petitioner seeks quashment and setting aside of the order dated 6.2.2010 passed by the learned Chief Judicial Magistrate, Latur, on application Exh.158 in R.C.C. No.582 of 1994 and also for allowing the said application. 3. The facts giving rise to this writ petition, in brief, are that earlier, the petitioners had approached this court by filing writ petition No.1082 of 2009. By order 2 dated 5.1.2010, this court allowed the said writ petition with certain directions. In the said writ petition, the grievance of the petitioners was that in R.C.C. No. 582 of 1994 pending against them under the Drugs and Cosmetics Act, examination-in-chief of the complainant was recorded by the predecessor of the present C.J.M. However, the same was not signed and as such could not be considered as examination-in-chief and on the basis of the same, the petitioners could not be called for conducting cross examination of the complainant. In view of specific provisions in Section 275(4) of the Code of Criminal Procedure, 1973, evidence recorded has to be signed by the Magistrate and then it would form part of the record. Writ Petition No.1082 of 2009 was allowed with following directions: 3 "6. In the facts and circumstances,the writ petition is allowed. The Chief Judicial Magistrate, Latur, is directed either to record examination-in- chief of the complainant once again in R.C.C. No.582 of 1994 or to call upon the complainant, administer him oath and then verify from him whether he wants to adopt the earlier alleged examination-in-chief as his examination-in-chief and then record so and thereafter treat the same as his examination-in-chief and proceed with the matter according to law. 7. Rule made absolute accordingly and the writ petition is disposed of." 4. Thereafter, the said criminal case was taken up for hearing by the learned Chief Judicial Magistrate, Latur, on 3.2/2009. The complainant was summoned and he appeared. He was given oath. He stated that the unsigned statement (examination-in- chief) was given by him and the contents therein are correct. He 4 further deposed about three documents, namely complaint dated 16.8.1993 lodged by him with Gandhi Chowk Police Station which is proved by him and marked as Exhibit 157 (which perhaps should have been marked as Exhibit 155), so also carbon copies of the bills dated 25.1.1993 and 17.5.1993 shown to him from R.C.C. No.38 of 1994. He proved those bills which are proved at Exhibits 156 and 157. 5. According to learned counsel for the petitioner, the said particular portion in paragraph 24 of evidence of the complainant proving complaint and carbon copies of bills is not authorised by the court and, therefore, could not have been recorded and to that extent, an application Exhibit 158 was also made. Moreover, on 3.2.2009, the learned Advocate of the petitioner was ill and so he was not present. 5 By application Exhibit 158, it was also prayed that "no cross examination order" be set aside and the petitioners herein be allowed to cross examine the complainant. However, the court allowed the said application only for recalling witness on payment of costs of Rs. 3000/=, but it refused to delete paragraph 24 of examination-in-chief of the complainant proving his complaint and bills referred to therein. 6. In criminal writ petition No. 1082 of 2009, the grievance of the petitioners was that since the earlier examination-in-chief is not signed by the then C.J.M., the same is not admissible in evidence and that was valid ground in view of section 275 (4) of Cr.P.C. So, the course open was to call for the complainant and ascertain from him whether he wanted to adopt his 6 earlier examination-in-chief or wanted to be examined afresh. It appears that the learned Magistrate and complainant chose to follow the former course of adopting earlier examination-in-chief. That, however, will not entitle the petitioners to claim that the trial court or the complainant went wrong in adopting such course and in allowing the complainant to state more in further part of his examination-in-chief, particularly in order to prove some additional documents. 7. I, therefore, do not find any illegality committed by the trial court in adopting earlier examination-in-chief & in allowing of documents to be proved and to that extent this petition cannot be allowed. So far as permission for cross examination of the complainant is concerned, the learned Chief Judicial Magistrate allowed the 7 present petitioners to cross examine the complainant. The case is pending from 1994 and thus dragged for last sixteen years. 8. In the circumstances, this writ petition has no merits and the same is, therefore, dismissed. Date: 18.02.2010 (P.R.Borkar, J.) pnd/ criwp137.10