- 1 - mang. rng IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRI.APPLN NO.971 OF 2011 Abdulla Abdul Shakoor Ghansar .. Applicant vs The State of Maharashtra .. Respondents Mr.Pervez Ubharey for Applicant Mr.A.S.Shitole APP for Respondents CORAM: K.U.CHANDIWAL, J DATE: 8th September,2011 P.C. 1. Heard learned counsel for the Accused- Applicant extensively. 2. Transfer of Sessions Case No.23 of 2010 pending before the Additional Sessions Judge, Mangaon District Raigad is sought. 3. The learned counsel submits that the approach of the learned Judge dealing with the matter from several events demonstrates - 2 - mang. that the learned judge has taken the role of the Prosecutor. The learned Judge by exercising his powers in terms of section 311 of Cr.P.C. on numerous occasions has attempted to fill in the lacunae in the prosecution case. The learned Judge on one occasion on 4.3.2011 made a sarcastic remark that he has to reach to the Accused. The matter was at the stage of arguments on 20.6.2011. The arguments commenced. The defence also had argued. The defence have argued on adjourned date 30.6.2011. The matter was adjourned on 12.7.2011. Thereafter, since the learned Judge was on leave it was adjourned from 22.7.2011 to 8.8.2011. 4. On 8.8.2011 the learned Judge by exercising his powers under section 311 of Cr.P.C. directed the Investigator PSI Gaikwad to be summoned by recording order below - 3 - mang. Exhibit 1 by assigning reasons. 5. The learned Advocate for the Applicant submits that such observations of the learned Judge tantamounts to an impression the learned Judge he has determined to record a conviction. Learned counsel reiterate that the learned Judge has formed a bias against the Accused-Applicant. 6. Averments in the Petition reflects the events for the so called observations dated 20.1.2011. This was subject of Criminal Application No.206 of 2011 seeking transfer, and by order dated 3.3.2011 this Court observed that the learned Judge does not seem to mean to reach the Accused or to corner or specify a particular accused but, it should be interpreted as a culprit. 7. Submissions in relation to the - 4 - mang. observations of the learned Judge in bail Application need not be weighed as apparently they are prima facie and it will not tantamount to believe that the learned Judge has set against conduct of the accused and even at the stage of bail, desired to convict the Accused-Applicant. 8. The criticism to exercise of powers under section 311 of Cr.P.C does not stand to reason. Basically, section 311 of Cr.P.C. is meant to avoid the lacunae to the detriment of litigant which creeped in, while recording the evidence. The learned Judge dealing with the matter can himself summon any witness in exercise of his powers to recall him. It is not for each and every circumstances, an Application is warranted from either of the side. Section 311 Cr.P.C. contemplates two situations. (a) Judicious discretion to be exercised by the learned Judge and (b) - 5 - mang. Mandatory aspect of such powers to be exercised by the learned judge. 9. Though at this stage, this Court need not go to the so called lacunae of the Prosecutor conducting the said Sessions case. However, report in respect of non- availability of the Investigator Gaikwad a Police officer was itself a slackness and dereliction in duty, whereabouts of Police officer cannot be said to be wanting. Even if a Police Officer proceeds on leave, his official record was available but, the prosecution for reasons best known, did not discharge expected obligation. The learned Judge having realised the situation had no option but, to accelerate in terms of section 311 of Cr.P.C. 10. The irk felt by the Accused-Applicant in exercise of powers, need not be taken as a - 6 - mang. comenting factor in a fractured prosecution case. The exercise was essential for just decision of the case as basically it revolves to recording of the statement of witnesses. Needless to indicate, any observation made by the learned judge during the course of trial to which elaborate reference was given by the learned counsel shall not weigh in the mind of the learned Judge. 11. With above observations, I do not find any reason to transfer the Sessions case from the learned Judge. Observations made by this Court are to be restricted to the extent of present proceedings. The learned judge need not be influenced by these observations, no adverse opinion against learned Judge. Application dismissed. K.U.Chandiwal,J