11. cr wp 3034­10.doc RMA IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 3034 OF 2010 Sanjay Rampratap Yadav .. Petitioner Vs The State of Maharashtra .. Respondents Mr. Shreeram Shirsat for the Petitioner Ms. A.A. Mane, APP for the State CORAM : SMT. V.K. TAHILRAMANI, J DATE : 27th OCTOBER, 2010. P.C.: 1. Heard learned advocate for the petitioner-original accused and learned APP for the State. 2. The petitioner is accused in Sessions Case No. 2 of 2009 which is pending before the learned Ad-hoc Additional Sessions Judge at Sewri, Mumbai. The case is under Sections 376, 323, 504 and 507 of IPC. During the trial, he preferred application for grant of permission to recall PW 1 who is the complainant and victim girl in the said case. The petitioner preferred the application under Section 311 of Cr.P.C. for recalling PW 1 before the Sessions Court on 22nd February 2010. By order dated 5th May, 2010, the learned Sessions 1 11. cr wp 3034­10.doc Judge allowed the said application. The grievance of the petitioner is that though the application for recalling of PW 1 was granted by the Sessions Court by order dated 5th May 2010, the Sessions Court did not allow the counsel for the accused to put questions to PW 1 during cross-examination, hence two applications came to be preferred by the learned counsel for the petitioner that they be allowed to put certain questions to PW 1 in cross-examination. Both these applications i.e Exh 37 and 38 came to be rejected by order dated 6th September 2010 by the learned Sessions Judge. Hence, this petition. 5. The learned advocate for the petitioner contended that once the application for recalling witness i.e PW 1 was allowed by the Court, the Court could not restrict the questions which were put in cross-examination by the defence to PW 1. 6. In order to appreciate the contention, it would be necessary to give brief facts of this case. The application under Section 311 of Cr.P.C. came to be preferred before the Sessions Court for the first time on 22nd February 2010. In the said application, recall of PW 1 was sought for further cross-examination. Grounds stated in the said application for recalling PW 1 were that the report of State Examiner 2 11. cr wp 3034­10.doc of Documents in relation to specimen handwriting of the accused and the report of the Chemical Analyzer was not produced on record till examination of PW 1 was over. Copies of these documents were not furnished to the accused, hence, it was submitted that if the prosecution is relying on these documents, it will result in causing prejudice to the accused while raising his defence, hence, it was necessary to recall PW 1 for further cross-examination. It was specifically contended that till the time the cross-examination of PW 1 was over, these documents were not brought on record and no copies thereof were furnished to the accused, hence, after these documents were produced, permission be granted to recall PW 1. The said application was in fact allowed by the learned Sessions Judge. The grievance of the petitioner is that though permission was granted to recall PW 1, the learned Sessions Judge did not allow the counsel for the petitioner to put certain questions in cross-examination to PW 1. 7. It is seen that the specific ground on which recall of PW 1 was sought was that the report of handwriting expert and the C.A. report were not furnished to the accused, hence on production of these documents, it was necessary to recall PW 1 in order to cross-examine her in relation to these documents. By order dated 5th May 2010, the learned Sessions 3 11. cr wp 3034­10.doc Judge allowed the said application by passing the following order: "1. Application is allowed. 2. The Sr. P.I., Bhoiwada police station is directed to take efforts to collect the handwriting expert report as early as possible and produce the same on record. 3. On production of handwriting expert report, the witness PW 1 Sunanda Shivaji Vanjare shall be recalled for cross examination. The accused is directed to deposit Bhatta and pay process fees, as per rules." 8. After the order was passed, PW 1 came to be recalled. As the counsel for the petitioner was not allowed to put certain questions during cross-examination, hence, two applications i.e Exh 37 and 38 came to be preferred by the petitioner that they be permitted to put certain questions in cross-examination. The questions in Exh. 37 are as under: 1. Is it correct that as per your statement before police that you were in love with the accused and no marriage took place between you and the accused; you were hurt? 2. So long as you were at Hill Line Police Station or at Bhoiwada Police Station for lodging FIR, you never complained that, you were not in proper state of mind and you had forgotten some events? The questions in Exh. 38 are as under: 4 11. cr wp 3034­10.doc 1. Is it correct that whether you have stated before Hill Line Police Station were repeated by you in same verbatim at Bhoiwada Police Station and you put your signature on the statement recorded at Bhoiwada Police Station after reading the same and satisfied that you do not miss anything, which is material in this case? 2. Is it correct that you did not tell the police your grievance when you were called by RAK Marg Police Station, Bhoiwada Police Station prior to lodging your FIR. 8. The specific ground on which recall of PW 1 was sought was that the report of handwriting expert and CA report were not produced on record and were not furnished to the accused. It is observed that none of these questions which were put by the defence advocate to PW 1 had anything to do with these two documents. These questions did not have the remotest connection with either the CA report or report of handwriting expert. In such case, the learned Sessions Judge was right in rejecting the application for putting the said questions to the witness in cross-examination. 9. Learned advocate for the petitioner has placed reliance on a decision of the single Judge of Allahabad High Court in the case of Riyazuddin & Ors Vs State of U.P. reported in 2001 Cri. L.J. 3907. In the said case, it was contended that 5 11. cr wp 3034­10.doc at the time of cross-examination, the counsel for the accused had no papers regarding the case including site plan, statement of witnesses recorded under Section 161 of Cr.P.C., hence, an application was preferred for recall of two witnesses which was allowed. In the said case, it was specifically contended that the counsel for accused had changed on account of poor health of earlier counsel. The new counsel was of the opinion that both the witnesses were important and material witnesses and had not been properly cross examined by the earlier counsel and the new counsel could not ascertain from the earlier counsel the questions to be asked, hence, recall was sought. In the present case, the application is on the specific ground that the CA report and handwriting expert report was not produced or copy thereof given to accused at the time of cross-examination of PW 1. In such case, the cross-examination ought to be confined to that point and the learned Sessions Judge was right in observing that under the guise of order dated 5th May 2010, the defence advocate cannot re-open the case. 10. Learned advocate for the petitioner submitted that in Riyazuddin (Supra), no fetters were put by the Court as to the nature of questions which could be put to the witnesses who were recalled. It is observed that no fetters were put in the said case on account of peculiar facts of the case i.e 6 11. cr wp 3034­10.doc statements of witnesses under Section 161 were not furnished and the defence counsel had changed midway and due to this, new counsel could not ascertain from the erstwhile counsel the scheme of the defense strategy which the earlier advocate had in his mind, hence, permission was granted to recall the witness. This ground was specifically raised in that case. Such are not the grounds taken in the present case. No such grounds were raised before the Sessions Court nor was any ground raised that as the counsel had changed, PW 1 be recalled for being cross-examined on all issues. 11. Learned advocate for the petitioner has also placed reliance on a decision of the Supreme Court in the case of Rajendra Prasad Vs The Narcotic Cell through its Officer in Charge, Delhi reported in AIR 1999 SC 2292. He placed reliance on the observations in paras 9 and 10 which reads as under: "Para 9....... If proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the court should be magnanimous in permitting such mistakes to be rectified. After all, function of the criminal Court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better." "Para 10..... It is therefore clear that the Criminal Court has ample power to summon any person as a witness 7 11. cr wp 3034­10.doc or recall and re-examined any such person even if the evidence on both sides is closed and the jurisdiction of the Court must obviously be dictated by exigency of the situation, and fair play and good sense appear to be the only safe guides and that only the requirement of justice command the examination of any person which would depend on the facts and circumstances of each case." 12. No doubt, if there is some mistake on the part of any of the parties, the party should be allowed to rectify the same. However, in the present case, from the questions being put by the learned counsel for the accused to PW 1, it does appear that the learned defence advocate wanted to reopen the entire case which is not certainly permissible. It would not be fair play and good sense to allow the defence to reopen the entire trial as was sought to be done by the learned counsel for the accused. It may be reiterated that the recall of PW 1 was sought on specific ground, in such case the questions in the cross-examination have to be restricted to questions for which recall is sought. In this view of the matter, no fault can be found with the learned Sessions Judge for not allowing any questions beyond the questions for which recall is sought. Hence, no case is made out for interference. Petition is rejected. [SMT. V.K. TAHILRAMANI, J.] 8 11. cr wp 3034­10.doc 9