1 734.11 CWP IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL WRIT PETITION 734 OF 2011 Suresh S/o Sukhdev Auchar PETITIONER VERSUS The State of Maharashtra RESPONDENT ..... Shri Rajesh M. Pardeshi, Advocate for petitioner Smt. R,K. Ladda, APP for the State ..... CORAM : U.D. SALVI, J. DATED : 14 th November, 2011. PER COURT : 1. Heard. Perused petition along with annexures thereto. Order dated 09-08-2011 passed by the learned Additional Sessions Judge, Shrirampur, District Ahmednagar permitting the cross- examination of PW-4 Sagar Kamble in Sessions Case No. 4 of 2011 has been challenged in the present petition. 2. The petitioner is being tried on the charges of commission of murder of one Bilal Kureshi, an offence punishable under Section 302 read with 34 of the Criminal Procedure Code, 1973 along with other accused in the said Sessions Case. PW-4- 2 734.11 CWP Sagar Kamble has been examined by the prosecution to reveal facts concerning the extra judicial confession made by the accused No. 1/ Suresh the petitioner herein. PW-4 Sagar Kamble’s statement under Section 64 of the Criminal Procedure Code, 1973, was recorded in the course of the investigation. 3. It appears from the perusal of the record that in examination in chief PW-4 Sagar Kamble supported the prosecution and remained faithful to his statement under Section 164 of the Criminal Procedure Code, 1973. In the cross- examination he revolted against his own statement recorded under Section 64 of the Criminal Procedure Code, 1973. The prosecution moved an application for cross-examination vis-a-vis his statement recorded under Section 64 of the Criminal Procedure Code, 1973. 4. After hearing the parties the learned Trial Court passed the following order :- “ Heard learned APP and Advocate for accused No. 1 at length. On perusing the examination-in-chief of PW-4 it seen that he supporting the prosecution case and on perusing the cross-examination of PW-4 it is seen that he is supporting the accused person. 3 734.11 CWP The prosecution can cross-examine its witness as he has support the accused in cross- examination. By allowing this application nothing prejudice will cause to the accused. Hence prosecution is allowed to further cross- examine the PW-4.” 5. The learned Advocate for the petitioner, submitted that the grant of permission to cross-examine the witness after the stage of cross-examination is over is abuse of the process of law, and the learned trial Court did indulge in such abuse, more so by passing non-speaking order. To compliment his submissions, learned Counsel placed reliance on the following judgments :- “1] State of Bihar V. Lalu Prasad Alias Lalu Prasad Yadav, reported in AIR 2002 SC 2432. 2} Sudhakar Tukarm Dhatrak V. State of Maharashtra, reported in 2009 ALL MR(CRI) 2535.” 6. Perusal of the impugned order reveals that the learned trial Court did reveal his mind regarding grant of permission to cross-examine the witness and ascribed it to the revolt of the witness against the prosecution in the cross-examination. The learned trial Court further reasoned that no prejudice was likely to 4 734.11 CWP be caused to the accused, if the cross-examination of witness was permitted. Obviously, it is not a non-speaking order. 7. In a case of State of Bihar V. Lalu Prasad Alias Lalu Prasad Yadav (referred supra), the Hon’ble Apex Court while endorsing the exercise of the discretion vested in the trial Court to grant permission to the party to cross-examine its own witness under Section 154 of the Evidence Act, made following observations in para No. 5 of the judgment which reads as under :- “ Nonetheless, a discretion has been vested with the Court whether to grant the permission or not. Normally, when the public prosecutor request for permission to put cross questions to a witness called by him, the court used to grant it. Here, if the public prosecutor had sought permission at the end of the chief examination itself, the trial court would have no good reason for declining the permission sought for. But the public prosecutor did not do so at that stage. That is precisely the reason why the trial judge declined to exercise his discretion when the permission was sought for after the cross-examination was over. The witness has said only the details in cross- examination regarding the matter which he said in the chief examination itself. It would have been a different position if the witness stuck to his version, he was expected to say by the party who called the witness, in 5 734.11 CWP the examination in chief, but he showed propensity to favour the adverse party only in cross-examination. In such case, the party who called him has a legitimate right to put cross question to the witness. But if he resiled from his expected stand even in chief examination, the permission to put cross-questions should have been sought then.” 8. The the Hon’ble Apex Court in a case of State of Bihar V. Lalu Prasad Alias Lalu Prasad Yadav has observed that it would have been a different position if the witness stuck to his version, he was expected to say by the party who called the witness, in the examination in chief, but he showed propensity to favour the adverse party only in cross examination. In such cases, the party who called him has a legitimate right to put cross question to the witness. In clear terms the Hon’ble Apex Court in fact, supports the view taken by the learned trial Court. In view of the peculiar facts and circumstances of this case, the Criminal Writ Petition deserves to be dismissed in limine. ( U.D. SALVI, J. ) SDM* November-11