Allowed

Suresh Dondu Mahajan v. the State of Maharashtra

Bombay HC7 Apr 2005WP/58/2004

Case brief

AI extract

What is this about?

The High Court of Bombay set aside the order of a Judicial Magistrate permitting the recall of prosecution witnesses under Section 311 CrPC. The Court held that the recall was an attempt by the prosecution to fill a lacuna in their case after evidence had been completed, which is not a valid ground for invoking Section 311 powers.

What did the court decide?

Impugned order permitting recall of witnesses was set-aside; Trial to proceed on its own merits.

Suresh Dondu Mahajan Vs the State of Maharashtra — Bail and Remand | Bombay HC (2005)

¶1

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

¶2

 CRIMINAL APPELLATE JURISDICTION

¶3

 CRIMINAL WRIT PETITION NO.58 OF 2004

¶4

 Suresh Dondu Mahajan ...Petitioner

¶5

 Versus

¶6

 The State of Maharashtra ...Respondent

¶7

 Mr.P.S.Dani for Petitioner.

¶8

 Mr.K.V.Saste, A.P.P. for Respondent.

¶9

CORAM: A.M.KHANWILKAR, J.

¶10

 APRIL 7, 2005.

¶11

P.C.

¶12

 1. Heard Counsel for the parties.

¶13

 2. Rule. Rule made returnable forthwith, by

¶14

 consent. Mr.Saste, A.P.P. waives notice for

¶15

 Respondent.

¶16

 3. As short question is involved, Petition is
 taken up for final disposal forthwith, by consent.

¶17

 : 2 :

¶18

 4. The only issue that arises for

¶19

 consideration in the present Petition is whether
 the Judicial Magistrate was justified in allowing
 the Application preferred by the prosecution
 recalling witness Nos.15 and 17, in exercise of
 powers under Section 311 of the Criminal Procedure
 Code.

¶20

 5. There can be no dispute that powers under
 Section 311 of the Code, ought to be exercised by
 the concerned Court for a just decision. However,
 in the present case, it is seen that the recording
 of evidence of the concerned witnesses was
 completed on 21st November 2003. Thereafter,
 statement of the accused under Section 313 of the
 Code came to be recorded on 18th December 2003,
 wherein, the accused has admitted documents at
 Exhibits 20 and 21. It is thereafter, the
 prosecution preferred Application Exhibit 23-D for
 recall of witness Nos.15 and 17. The relevant
 averments made in the Application reads thus :

¶21

 "When the evidence of the prosecution was

¶22

 : 3 :

¶23

 closed these documents i.e. Exh.20,
 Exh.21 & Exh.22 were not part of evidence
 and now when those documents have become
 part of evidence, the evidence of
 wit.No.15 - who conveyed the admission of
 the injured into the hospital she P.S.O.
 writs.No. 17 has because necessary for
 just decision of the case. "

¶24

 . The Court below has allowed that

¶25

 Application on the following reasoning :

¶26

 "Initially, when he had early completed
 the evidence of the prosecution after
 examining two witness and after admitting
 P.M. notes and the accident report form,
 the evidence at that stage was sufficient
 according to him. But, after the argument
 of APP was over Ld.Counsel for the accused
 admitted the two documents and because of
 that for better opportunities and for
 bringing more clarity in the evidence and
 for just decision of the case evidence of
 the witnesses in necessary. Relying on
 the decision given in the cited cases
 above, I think that the application is
 liable to be granted and the evidence of
 two witnesses is quite necessary for the
 just decision of the case."

¶27

 6. It is obvious that the reason for

¶28

 permitting recall of witness Nos.15 and 17 has
 nothing to do with the two documents admitted by
 the accused during the course of recording of
 statement under Section 313 of the Code. The
 reason recorded that, to bring more clarity in the

¶29

 : 4 :

¶30

 evidence and for just decision of the case,

¶31

 evidence of concerned witnesses is necessary,
 clearly overlooks that power under Section 311 of
 the Code ought not to be invoked to enable the
 prosecution to fill-in the lacuna in the
 prosecution case. The concerned witnesses were
 examined by the prosecution. The fact that
 extrajudicial confession was made, was a
 substantive evidence, which ought to have been
 brought on record in the course of recording of
 evidence. That fact has nothing to do with the two
 documents which have been admitted by the accused.

¶32

 7. In my opinion, therefore, the order of
 permitting recall of witness Nos.15 and 17 as
 passed by the Judicial Magistrate dated December
 18, 2003 deserves to be set-aside.

¶33

 8. Accordingly, this Petition succeeds.

¶34

 Impugned order is set-aside. Trial to proceed on

¶35

 its own merits, in accordance with law.

¶36

 A.M.KHANWILKAR, J.

Suresh Dondu Mahajan v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Suresh Dondu Mahajan v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Chandar Ashok Kakade Vs the State of Maharashtra

Bharat Tukaram Redkar Vs the State of Maharashtra

Anju Ahuja Vs Mohan Thakurdas Chawla and Anr.

Sangameshwar Dhulappa Surgehalli Vs the Commissioner of Police and Anr.

Anil Badrumal Lalwani Vs the State of Maharashtra

Subhash Abasaheb Patil Vs the State of Maharashtra