1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH NAGPUR Criminal Application No. 3279/2009 State of Maharashtra, thr. PSO Police Station, Ambazari,Nagpur. .. APPLICANT .. Versus .. Sau. Goura Arjunrao Khodke, aged about 57 yers, Occ. Nil, Ajay Nagar, Nagpur. .. NON APPLICANT --------------------------------------------------------------------------------- Mr. S. S. Doifode, A.P.P. for applicant. Mr. Abdul Bashir, Advocate for non applicant. --------------------------------------------------------------------------------- CORAM:- S. S. SHINDE, J. DATED :- 18 th November, 2009 P. C. 1. This application is filed challenging order dated 02.07.2009 passed in Criminal Revision No. 652/2009 by Additional Sessions Judge-8, Nagpur. 2. It is the case of the applicant-State that Chief Judicial Magistrate, Nagpur by order dated 29.05.2009 in Regular Criminal Case No. 210/2000 rejected the application field by the applicant/prosecution for grant of permission to examine the witness. On 25.06.2009, the 2 applicant/State filed Criminal Revision No. 652/2009 praying therein to quash and set aside order dated 29.05.2009 and allow the application filed by the State to examine the prosecution witness. The Additional Sessions Judge-8, Nagpur vide order dated 02.07.2006 in Criminal Revision No. 652/2009 dismissed the revision by confirming order dated 29.05.2009 passed by Chief Judicial Magistrate, Nagpur. Being aggrieved, the present application is filed by the State. 3. Learned A.P.P. for the State submitted that the Additional Sessions Judge-8, Nagpur has not taken into consideration that due to circumstances beyond the control of prosecution, the witness, who is Police Officer, could not remain present before the trial Court on two dates. It is further submitted that the learned Sessions Judge erred in observing that the witnesses were Police personnel and prosecution could not secure their presence before the Court on 23.04.2009 for recording evidence as last opportunity was granted. It is further submitted that due to Lok Sabha Elections, at the relevant 3 time, witness/ Police witness could not remain present for adducing their evidence. It is further submitted that to give fair opportunity to the applicant, the application field by applicant should have been allowed for examination of the witnesses. Therefore, the learned A.P.P. would submit that this application may be allowed. 4. The learned counsel for the non applicant submitted that earlier also the applicant-State preferred revision, which was registered as Criminal Revision No. 237/2009. It was allotted to the file of the same revisional Court. The said revision was decided on 01.04.2009 in favour of the present applicant in which the Court was pleased to allow the said revision in favour of the applicant, thereby granting one last chance in its favour to examine the witness. Notwithstanding the fact that the applicant-State was granted last chance, the applicant had miserably failed to produce the witness. As a result, the learned Chief Judicial Magistrate, Nagpur was pleased to close side of the applicant/prosecution and case was fixed for arguments of the applicant. It is pertinent to 4 note that the applicant had once again moved another application for calling its witness but the learned trial Court was pleased to reject that application by passing the speaking order thereon. The revisional Court has also rejected the revision. According to learned counsel, sufficient time was granted to the applicant. However, the applicant failed to examine the witness and, therefore, the matter was posted for arguments. Learned counsel further submitted that no sufficient and genuine reasons are given for absence of witnesses for examination though last opportunity was given to the applicant to examine the witness. Therefore, the learned counsel would submit that this application may be rejected. 5. I have heard learned A.P.P. for the applicant and learned counsel for non applicant. Perused the judgment and order passed by the Courts below. The learned Additional Sessions Judge-8, Nagpur in para (8) of judgment has observed that earlier Criminal Revision No. 237/2009 was preferred by the present applicant with 5 prayer to set aside order passed by learned Chief Judicial Magistrate, Nagpur and grant permission to examine the witness. The revisional Court, after recording facts and circumstances of the case, in the interest of justice, allowed the said revision and set aside the order passed by Chief Judicial Magistrate below Exh.-49 and directed the prosecution to keep present witness on the next date before learned Chief Judicial Magistrate for examination. It was also made clear in the said order that if the prosecution fails to keep the witness present then the Magistrate may proceed further according to law. In para (9) the learned Additional Sessions Judge further observed that on the date fixed by Chief Judicial Magistrate and in spite of directions by the revisional Court on 23.04.2009, the prosecution failed to examine the witness though last opportunity was granted. The learned Judge has further observed that evidence in the present matter has started on 17.01.2008, i.e. since more than 1 ½ years the matter is part heard. Learned Judge has further observed that sufficient opportunity was granted to the prosecution to examine the witnesses. The record also goes to show 6 that since February-2009 the matter is fixed for evidence of the Investigating Officer. Earlier also, the Court had granted opportunity to the prosecution while deciding the Criminal Revision No. 237/2009. The prosecution also failed to obey that order and had also failed to keep the witness present before learned Chief Judicial Magistrate. Therefore, the revision filed by applicant came to be rejected. On careful perusal of the contents of the application, annexures thereto and judgment and order passed by Courts below, I am of the considered view that though opportunity was given to the applicant to examine the witness by allowing the revision field by the applicant on the fixed date, the applicant failed to examine the witness. 6. Once the order of Chief Judicial Magistrate Magistrate was set aside by the revisional Court and specific date was fixed by the learned Chief Judicial Magistrate for examination of the prosecution witness, the applicant failed to avail the last opportunity granted by 7 the revisional Court and shown utter disregard to the Court’s orders. The another application, for the same purpose and another revision for the same purpose is only abuse of the process of Court. The applicant, who is State and prosecution, cannot behave in such a manner and abuse the process of Court. The witness, who is Investigating Officer, cannot show disregard to the earlier orders of the Court, which are invited by himself. Therefore, the application is misconceived and the same deserves to be rejected In the result, the criminal application is rejected and disposed of accordingly. JUDGE kahale