1108crra168.08.odt 1/3 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, NAGPUR BENCH, NAGPUR CRIMINAL REVISION APPLICATION NO. 168 OF 2008 The M.S.E.D.C.L., Mul vs. Pramod Tukaram Jundawar & The State of Maharashtra ----------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders ----------------------------------------------------------------------------------------------------------------- Mr. V. M. Deshpande, Advocate for the applicant. Mr. M. Anilkumar, Advocate for respondent No.1. Mr. DB Yengal, APP for respondent N0.2-State. CORAM:- R. Y. GANOO, J. DATED :- 11TH AUGUST, 2009. P. C. : 1. Respondent No. 1 faced trial before learned 2nd Adhoc Additional Sessions Judge, Chandrapur in Special Case No. 23 of 2006 in regard to offence under Section 135 of the Electricity Act. At the end of the trial, the learned Additional Sessions Judge by his judgment and order dated 05/01/2007 acquitted the respondent of charge under Section 135 of the Electricity Act. Being aggrieved by this judgment and order dated 05/01/2007, the revision application has filed this revision application. 2. It is seen that PW-3 P .S. I. Nikose did not appear before the Court for completion of his cross examination and the learned A. P .P. had not taken steps to secure his presence by having a bailable or non bailable warrant which resulted in dropping of the evidence of said P. S. I. Nikose and that was considered against the prosecution. 3. It was the case of the prosecution that the theft of electricity was being done by the use of a device more particularly set out in paragraph 10 of the judgment and that device 1108crra168.08.odt 2/3 was not produced before the Court in the course of the trial. This was also considered as a defect in the presentation of the case by the prosecution and that is how the learned Additional Sessions Judge acquitted the respondent. 4. Before this Court Mr. Deshpande submitted that it was the duty of the learned Judge to see that appropriate steps are taken to secure presence of P. S. I. Nikose so that his evidence could have been completely recorded. He submitted that inaction on the part of the learned Prosecutor should not result in causing injustice to the petitioner. 5. Insofar as this argument is concerned, nothing in placed before the Court to show that the applicant filed complaint against the Prosecutor for not taking proper steps to secure presence of the said P. S. I. Nikose. Apart from that, I am not inclined to accept the arguments advanced by Mr. Deshande that the learned Additional Sessions Judge should have taken steps on his own to secure presence of P. S. O. Nikose. In my view, it was not the duty of the Court one or the other way to secure presence of witnesses by taking over a task of prosecution. In a sessions case the Prosecutor is a person who takes the case ahead and has to see that appropriate evidence in support of the case of prosecution could placed before it. A Judge conducting trial cannot take steps which may be treated as something done on behalf of the prosecution. With these observations the absence of P. S. I. Nikose for completion of the evidence as is naturally to be taken in favour of the accused as the accused did not have the benefit of fair trial so far as the charge is concerned. So far as Non production of device, the learned Additional Sessions Judge was right because it was the case of the applicant that theft of electricity was done with the help of device. Naturally, the Court before whom the case was being conducted, should have been made 1108crra168.08.odt 3/3 available that device by which the theft is committed so that the Court could have appreciated the evidence. In absence of device, the presentation of the case before the learned Additional Sessions Judge would be academic. In my view the learned Additional Sessions Judge has correctly observed in para 10 of his order that non production of the device is fatal to the prosecution. 6. In view of the aforesaid discussion, the learned Additional Sessions Judge has taken a correct view of the matter and no interference in the order of acquittal is required. Hence, the revision application is dismissed at the stage of admission. JUDGE wwl