1 Criminal Appl.No.1709 of 2011 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.1709 OF 2011 The State of Maharashtra, Through Police Station, Shevgaon, Tq.Shevgaon, Dist. Ahmednagar APPLICANT VERSUS 1. Santosh S/o.Babasaheb Dalvi, Age-21 years, R/o.Vehegavane, Tq.Shevgaon, Dist.Ahmednagar, 2. Rajendra Sopan Karad, Age-39 years, 3. Bhaginath Jagannath Jadhav, Age-47 years, 4. Sopan Punja Karad, Age-65 years, 5. Sanjay Mohan Bade, Age-30 years, 6. Babasaheb Dada Dalvi, Age-50 years, respondents no.2 to 6 are under trial and at present at Sub-Jail, Ahmednagar RESPONDENTS Mr.S.G.Nandedkar, learned A.P.P. for respondent/State. Mr.R.K.Temkar, learned counsel for respondents no.1 and 6. Mr.Joydeep Chatterji, learned counsel for respondents no.2 to 5. (CORAM : A.V.POTDAR, J.) DATE : 29/08/2011 ORAL JUDGMENT : 1. By the present application u/s. 482 r/w. 311 of the Cr.P.C., the 2 Criminal Appl.No.1709 of 2011 State is before this Court, praying to quash and set aside the impugned order dated 30/03/2011, passed by the Additional Sessions Judge, Ahmednagar below Exh.94 and 101 in Sessions Case No.45/2010, by which the applications at Exh.94 and 101 were rejected. 2. Rule. Rule made returnable forthwith. By consent of the parties, heard finally at the stage of admission itself. 3. Such of the facts as are necessary for the decision of this application can be summarized as : Initially on the basis of FIR lodged, an offence came to be registered against the respondents for an offence punishable u/s. 306 r/w. 34 of the IPC. During the investigation, after statement of Sikandar Pathan was recorded, an offence was added u/s. 302, 201 r/w. 34 of the IPC in the said FIR. On completion of investigation, charge sheet came to filed on committal of the trial to the Court of Sessions, an application for bail was moved before this Court to release the respondents. At that time, the trial was expedited. 4. It appears that during the investigation, total 11 witnesses were examined including Shaikh Sikandar Mehmood Pathan, who was examined as P.W.No.5 in the said Sessions Trial. This witness is the only eye witness to the alleged incident of sad demise of Sarang. It appears that his statement came to be recorded u/s. 164 of the 3 Criminal Appl.No.1709 of 2011 Cr.P.C. during the investigation. 5. After evidence close pursis was filed by the prosecution and the matter was listed for recording of statements of respondents/accused u/s. 313 of the Cr.P.C., at that stage, an application was moved at Exh.94 to produce certain documents from said Yashwant Sakhar Karkhana Ltd., Theur. No order was passed on that application instantly, as those documents were not accepted by the other side. Another application at Exh.101 was moved to call the documents frm the relevant person of the sugar factory. Both those applications were rejected by the Courts below, which were filed u/s. 311 of the Cr.P.C. to call the witness on the ground that statement of the witness to whom the prosecution intends to call was not recorded u/s. 161 of the Cr.P.C. during the investigation. Secondly the documents are called and the witness is prayed to be examined at the stage and that is after certain admissions were sought in the cross examination of P.W.No.5 and lastly and most importantly, according to the learned Lower Court, that witness was not cited as a witness in the list of the prosecution. 6. I have heard learned A.P.P. in support of the application and learned counsels for respondents, who support the reasoning recorded by the Trial Court. Considering these submissions across the bar, it is necessary to quote section 311 of the Cr.P.C., which reads as : 4 Criminal Appl.No.1709 of 2011 Power to summon material witness, or examine person present – Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case. Considering the submissions across the bar, so also the record shows that the applicant/prosecution intends to produce those documents and to call the witness to prove the documents because of certain vague admissions were given by P.W.No.5 in his evidence. This is a disclosure of new facts in the cross examination of P.W.No.5. Certainly, statement of that witness was not recorded u/s. 161 of the Cr.P.C. during the investigation. Section 311 of the Cr.P.C. clearly speaks that examination of the witness is necessary if his evidence appears to be essential for the decision of the case. At this stage, it is necessary to bear it in mind that to clear the ambiguity created in the cross examination of P.W.No. 5 because of certain vague admissions given by the witness, to clear those admissions, production of the documents is necessary and once the production is allowed, to prove those documents, recording of evidence of the relevant witness is also necessary. In the light of this, the applications filed by the prosecution before the Court below are 5 Criminal Appl.No.1709 of 2011 clearly covered under the ambit of section 311 of Cr.P.C., but not as a general rule, but considering the peculiar circumstances of this case only. In view of this, in exercise of the inherent jurisdiction of this Court, it is necessary to quash and set aside the orders passed below Exhs.94 and 101, rejecting those applications. In the circumstances, the application succeeds. 7. Rule thus made absolute as indicated above. Applications at Exh.94 and 101 are hereby allowed. It is informed the next date before the Lower Court is fixed on 08/09/2011. In view of this, prosecution to take necessary steps to keep the witness present at the earliest and to examine the witness within the period of 3 weeks after receipt of writ of this Court with the Lower Court. This 3 weeks period to be counted from 08/09/2011. If within stipulated time, prosecution will fail to examine the witness, then the application to be treated as rejected. It is made clear that the order passed in this application is passed by considering the exceptional circumstances and not passed as a rule. Lower Court, not to influence with the observations of this Court made in this order. (A.V.POTDAR, J.) khs/AUG.2011/cri.appl.1709-11