The High Court rejected a writ petition seeking recall of witnesses under Section 311 Cr.P.C. It held that the petitioner failed to cross-examine despite having the opportunity and lacked clean hands due to suppression of material facts.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRI.WRIT PETITION NO.1459 OF 2009
Rashid S.OOmerbhoy .. Petitioner
vs
1.State of Maharashtra
2.Municipal Corpn.of Gr.Mumbai. Respondents
3.Nadeem Oomerbhoy
Mr.A.B.Pandey for Petitioner
Mr.R.M.More APP for State
Ms.Teja Katdare for Respt no.2
Mr.Sailesh Thakkar i.b M/s Sailesh Thakkar &
Co for Respt no.3
CORAM: K.U.CHANDIWAL, J
DATE:8th September,2011
P.C.
1. Heard respective counsel.
2. In case No.5258/MB/2004 pending before
the learned 41st Metropolitan Magistrate,
Shindewadi, Dadar, Mumbai initiated by the
BMC vs Rashid Sattar Ommerbhoy an
Application was moved by the Applicants for
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recall for PW1 and PW 2 the witnesses on
behalf of Municipal Corporation of Greater
Mumbai. Application (Exhibit D) states that
Advocate for the accused was absent for
personal difficulties and another advocate
for the accused has cross-examined the
witnesses. Hence there is no mistake on the
part of the Advocate for Accused. There is
also no suggestion of the defence case put
to PW 1 and PW 2. It was urged that PW 1
and PW 2 be recalled in the interest of
justice as the learned Judge dismissed the
same by passing an order on 6.4.2009. The
learned Additional Sessions Judge did not
agree with the petitioner and confirmed the
order of the learned Metropolitan Magistrate
of declining to recall PW 1 and PW 2.
Hence, the present Application.
3. Elaborate submissions are made by the
learned counsel for the Petitioners, learned
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counsel for the Municipal Corporation
Greater Mumbai and the Respondent no.3 the
legal representative and partner of the
firm.
4. There is no controversy that on 2.8.2001
Court Receiver was appointed in the suit
filed by the father of Respondent no.3.
Considering the several properties including
the flat in question which was in the name
of the firm, Court receiver on 5.3.1992
appointed the petitioner in the capacity as
Defendant no.2 as its agent. Orders specify
that the flat was for residential purpose.
In the affidavit of the son of the
Petitioner when a Private limited company
was incorporated the son of the Petitioner
in unequivocal terms in Chamber Summons
elaborated that the commercial activities
are conducted in the said flat.
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5. My attention was drawn to the evidence
of PW 1 and PW 2 by both the learned
counsel. On going through the same, I find
that the learned counsel representing the
Petitioner was well acquainted with the
facts of the case while conducting defence.
PW 1 was cross-examined by the learned
counsel representing the Petitioner on
21.7.2008. Another witness PW 2 was examined
on 11.8.2008. Counsel representing the
Accused- Petitioner declined to cross-
examine. It is not that he was not afford
any opportunity to cross-examine the
witnesses. The allegations against the said
Advocate, branding him to be negligent as is
emerging in the Petition, does not stand to
reason as the Advocate has apparently acted
on the instructions of the Petitioner. He
is still in the management of Petitioner.
Averments made in para 7 and 15 are contrary
to the record.
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6. I find substance in the submissions of
the learned counsel for the Respondent no.3
that conduct of the Petitioner does not call
for interference in orders of revision to
recall PW 1 and 2 as he has not come with
clean hands and is guilty of supression of
material and relevant facts.
7. During the course of dictation,
Mr.Pandey interrupts and says that Advocate
Zahir who has cross-examined PW 1 or
declined to cross-examine PW2 was not
Advocate on record. This stand would not
accelerate to recall the witnesses, as
Advocate Zahir is still in charge of brief
and present before this Court.
8. Taking all the facts into consideration
though powers under section 311 of Cr.P.C.
are to be reasonably exercised however, this
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is a case wherein conduct of the Petitioner
does not call to exercise such powers to
recall the witnesses. The powers conferred
is conditioned by requirement that such
exercise would be essential to the just
decision of case. The Petition lacks merit.
The same is dismissed.
K.U.Chandiwal,J
3 issues framed by the court
Whether the High Court should exercise powers under Section 311 Cr.P.C. to recall witnesses who were not cross-examined due to the petitioner's inaction.
Whether the petitioner's conduct involving suppression of material facts renders him unfit to invoke the court's revisional powers.
Whether the arguments raised regarding the propriety of the Advocate on record suffice to warrant recall of witnesses.
1 provisions across 1 enactments
Rashid S.OOmerbhoy
State of Maharashtra
Municipal Corpn.of Gr.Mumbai
Nadeem Oomerbhoy
K.U. Chandiwal
As recorded by the court registry
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