rpa IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION WRIT PETITION NO. 478 OF 2008 WRIT PETITION NO. 478 OF 2008 WRIT PETITION NO. 478 OF 2008 Vasant Mukund Phad & Anr. .. Petitioners V/s. The State of Maharashtra & Ors. .. Respondents Mr.J.Shekhar i/b.J.Shekhar & Co. for the Petitioners. Mr.Y.s.Shinde, A.P.P.-State. CORAM : A.P.DESHPANDE, J. CORAM : A.P.DESHPANDE, J. CORAM : A.P.DESHPANDE, J. DATE : 10TH MARCH, 2008. DATE : 10TH MARCH, 2008. DATE : 10TH MARCH, 2008. P.C.:- P.C.:- P.C.:- . Rule. 2. Rule made returnable forthwith by consent of the parties. 3. The present Petitioners are accused in a case pending on the file of Sessions Judge. The Petitioners accused are in custody and are being prosecuted for the commission of offence punishable under section 302, 201 and 394 read with section 34 of Indian Penal Code. Alongwith the present Petitioners, the Respondent No.2 is a co-accused and he is also in custody, as informed by the learned counsel for the Petitioners. During the period from 14th December, 2006 to 13th October, 2007, the prosecution examined as many as 16 witnesses in support of the case. The cross-examination, as well, of the 16 witnesses is over. The P.W.17 is the Investigating Officer whose examination-in-chief is over and he could not be cross-examined as the advocate for the Petitioners was not available, he being engaged before some other Court. The record reveals that on few occasions the jail authority did not produce the Petitioners in the Court when the case was fixed and on few occasions P.W.17 had not attended the Court. On 11th January, 2008 the Investigating Officer was present and his examination-in-chief was conducted, but he could not be corss-examined on account of absence of advocate for the accused. The Sessions Judge being of the view that adequate opportunity was made available to the accused to cross-examine the witness, but as the accused failed to avail of the said opportunity, the corss-examination of Accused Nos.1 and 2 came to be closed. The Petitioners / Accused moved an application under section 311 of Criminal Procedure Code pointing out that the Accused alone cannot be blamed for the delay and the delay is attributable to the failure on the part of the Jail Authority to produce the accused before the Court, so also on account of P.W.No.17 remaining absent on some of the dates. The prayer for recall of the witness, who is the Investigating Officer came to be rejected, by observing that the Advocate for the accused failed to point out that the Accused would be prejudiced on account of denying the recall of the said witness. The approach of the Sessions Judge is not just and fair. Denial of opportunity to cross-examine the Investigating Officer itself is prejudice and no further prejudice need to be shown to be caused to the Petitioners, more so, when the accused are facing accusation under section 302 of Indian Penal Code. The learned counsel for the Petitioners submits that hereafter the advocate for the Accused will attend the Court without fail and and he would not seek any adjournments. 4. In my opinion, interest of justice demands that the witness be directed to be recalled for corss-examination. In the result, the application filed by the Petitioners under section 311 of the Criminal Procedure Code is allowed and I direct the Sessions Judge to summons P.W.17, the Investigating Officer, for cross-examination by the present Petitioners / Accused. The impugned order dated 16th February, 2008 below Exh.77 in Sessions Case No.147 of 2006 is quashed and set aside. Rule made absolute in the above terms. Writ Petition is disposed of. 5. Authenticated copy of this order be issued by the Shirestedar of this court. (A.P.DESHPANDE,J.) (A.P.DESHPANDE,J.) (A.P.DESHPANDE,J.)