1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.12 OF 2009 Jayesh Navalshankar Joshi Petitioner versus State of Maharashtra Respondent Mrs.Divya R. Trivedi for petitioner. Miss A.T.Javeri, APP for State. CORAM : A.S.OKA, J. DATE OF RESERVING THE JUDGEMENT : 08.05.2009 DATE OF PRONOUNCING THE JUDGEMENT : 09.06.2009 JUDGEMENT :- 1. The petitioner-accused by filing this writ petition has taken an exception to the order dated 21st June 2008 passed by the learned Metropolitan Magistrate, 26th Court, Borivali, Mumbai. 2. The petitioner is facing trial for the offences punishable under sections 465, 467, 468, 471, 420, 406 read with sections 34 of the Indian Penal Code. On 21st November 2005 the prosecution examined a witness Mr.Shantaram Vinayak Karnik. The witness was cross examined before the Court. On 24th 2 April 2008 the petitioner made an application invoking section 311 of the Code of Criminal Procedure, 1973 for recalling the said witness for cross examination. The said application was opposed by the respondent-State by filing a reply. In the said reply it was stated that the said Shantaram Karnik (the first informant) was examined before the Court on six dates and he was cross examined at length by the advocate for the petitioner. It was contended that no ground for invoking the jurisdiction of the Court under section 311 of the said Code was made out in the application. It was pointed out that as the first informant was a senior citizen, the hearing of the case was expedited. 3. A rejoinder was filed by the petitioner to the said reply. In the rejoinder it was stated that recording of evidence commenced on 23rd November 2005 and the same was closed in April 2008. It is pointed out that though the wife of the first informant was cited as a witness, the prosecution did not examined her as a witness. It was pointed out that in July 2007 the petitioner became aware that the property in dispute was conveyed by the first informant to Mr. & Mrs.Rajput on 2nd September 2006. It is stated that the said Mr.Rajput is a police 3 officer occupying police officers’ quarters situated right behind Borivali Police Station. It was submitted that as the prosecution has dropped the other witness i.e. the wife of the complainant, it was necessary to recall the complainant for bringing the vital evidence on record. It was pointed out that though the order under section 156(3) of the said Code was passed in the year 2002, the charge sheet was filed in the year 2004 and that is how the case has been delayed. The learned Magistrate by order dated 21st June 2008 rejected the said application under section 311 of the said Code by observing that there was no reference in the application made by the petitioner as to for what purpose the witness was required to be recalled. The learned Judge observed that the witness is very old person and was bedridden. A revision application was filed by the petitioner for challenging the said order. By order dated 11th December 2008, the revision application has been dismissed by the Sessions Court. 4. The learned counsel appearing for the petitioner submitted that the application under section 311 of the said Code ought to have been allowed. He has placed reliance on a 4 decision of the Apex Court in the case of Rajendra Prasad Vs. Narcotic Cell through its Officer-in-charge, Delhi (AIR-1999- SC-2292). He also relied upon another decision of the Apex Court in the case of Shailendra Kumar Vs. State of Bihar and others {(2002)1-SCC-655}. He submitted that the petitioner cannot be deprived of right of cross examining the complainant on certain relevant aspects on which he was not cross examined. He submitted that the application ought to have been allowed. 5. By order dated 17th April 2009 the learned APP was granted time to produce the medical certificate showing the present health condition of the witness. Accordingly, the learned Prosecutor has produced a certificate dated 5th May 2009 issued by Dr.V.V.Kelkar, Borivli, Mumbai. It is stated in the certificate that the said doctor examined the said witness Shantaram Karnik, aged 86 years at his residence on 5th May 2009 at 10.00 a.m.. It is stated in the certificate that the witness was suffering from Parkinsons decease and his right hand has been affected by the said decease. It is stated that the witness was suffering from left side upper and lower extremity paralysis. 5 It is recorded that his left foot has been operated upon. It is also stated that he is suffering from diabetes and hypertension. It is stated that the witness cannot make movements on his own without taking help of minimum two persons. It is also recorded that he is bedridden and is able to walk only with the help of at least two persons. The learned APP supported the impugned order and opposed the petition by contending that now the witness is not capable of being examined on the ground of his ill-health. The learned counsel for the petitioner submitted that further cross examination of the witness can be always recorded by appointing a Court Commissioner. 5. I have carefully considered the submissions. The Sessions Court in the order passed on the revision application has noted that the said witness was examined on 23rd November 2005 and the last witness was examined on 17th March 2008. It is pointed out by the Sessions Court that the application under section 311 of the said Code was filed in April 2008. After going through the notes of evidence, the learned Additional Sessions Judge observed that the said witness has been cross examined at length by two or more advocates as 6 the petitioner changed the advocates from time to time. The learned Judge noted that a perusal of the cross examination of the witness showed that several suggestions in respect of involvement of Inspector Rajput have been put to the witness and they have been denied. A perusal of the application under section 311 of the said Code shows that there is no specific ground made out in the application. The application is very vague and it is not set out as to what is the object of recalling the witness. In the rejoinder filed by the petitioner, reliance is placed on the fact that in July 2007 the petitioner came to know that the property in dispute has been sold by the first informant to Mr.Rajput, the police officer and his wife on 2nd September 2006. It was sought to be contended that on the basis of the role played by Mr.Rajput, further cross examination of the witness was necessary. 6. The recording of evidence of the said witness commenced on 23rd November 2005. Till 17th March 2008 the prosecution has examined as many as nine witnesses. The Sessions Court has noted that the petitioner had already cross examined the witnesses on the role played by Mr.Rajput. Even 7 going by the averments made in the rejoinder filed by the petitioner at least in July 2007 the petitioner was aware of the transaction entered into in June 2006 in favour of Mr. & Mrs.Rajput. As stated earlier, the application under section 311 of the said Code was filed in April 2008. The application was made after nine prosecution witnesses were examined. As of today, the present age of the witness Mr.Shantaram Karnik is 86 years. He is suffering from parkinson’s decease, diabetes and hypertension. The medical certificate shows that he had also suffered paralysis and is now bedridden. 7. No ground contemplated by section 311 of the said Code has been made out by the petitioner either in the application under section 311 of the said Code or in the rejoinder. The application under section 311 of the said Code was filed belatedly and there is no explanation for delay. Therefore, the eighty six years old witness cannot be allowed to suffer by recalling him after lapse of four years. Hence, no interference is called for. The writ petition is accordingly dismissed. (A.S.OKA, J.)