Allowed

Pralhad Yadav Patil v. the State of Mah

Bombay HC20 Nov 2012APEAL/307/2012

Case brief

AI extract

What is this about?

The High Court allowed an appeal and quashed the trial court's judgment under the Prevention of Corruption Act. Despite allegations of unfairness, the court held that the appellant must be remanded to allow cross-examination of the complainant, as prejudice was caused by the trial judge refusing to recall the witness after the appellant had waived such right earlier.

What did the court decide?

The order dated 13th April, 2012 was quashed; the case was remanded to the Special Judge to fix the complainant for cross-examination within one week, with disposal of the case within three months the

Pralhad Yadav Patil Vs the State of Mah — Criminal Trial and Appeal | Bombay HC (2012)

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(1)

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criapl307-12

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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CRIMINAL APPEAL NO. 307 OF 2012 WITH CRIMINAL APPLICATION NO. 1888 OF 2012 WITH

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CRIMINAL APPLICATION NO. 1887 OF 2012

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Pralhad Yadav Patil,
Age : 57 years, Occu. Service,
R/o Plot No. 4, Vidyut Nagar,
Parola, Tq. Parola, District
Jalgaon.

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APPELLANT/
APPLICANT

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VERSUS

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The State of Maharashtra,
through Police Inspector,
Anti Corruption Bureau,
Jalgaon, District Jalgaon

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RESPONDENT

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.....

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Mr. Nitin B. Suryawanshi, advocate for the appellant.
Mr. G.R. Ingole, A.P.P. for the Respondent-State.

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.....

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CORAM : M.T. JOSHI, J.

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DATED : 20th November, 2012

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ORAL JUDGEMENT :

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1.Heard both sides.

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2.The Criminal Application No. 1888/2012 is

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filed by the appellant/accused praying for quashing

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the judgement passed by the learned Special Judge and

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remanding the case for the purposes of cross-
examination of PW1 complainant.

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(2) criapl307-12

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3.Aggrieved by the order of conviction and
sentence, passed by the learned Special Judge,
Amalner in Special Case No. 3/2010, the criminal
appeal is filed wherein Criminal Application No.
1887/2012 is filed for bail and interim bail was
granted by the learned Single Judge of this Court.

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4.With consent of the parties, the appeal is
admitted and taken up for final hearing.

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5.The appellant is convicted by the learned
Special Judge, Amalner for the offences punishable
under section 7, 13 (1) (d) read with section 13 (2)
of the Prevention of Corruption Act, 1988. The
allegations are that the appellant - Pralhad being a
public servant employed in Maharashtra State
Electricity Distribution Company Limited, has made a
demand of illegal gratification of Rs. 20,000/- from
complainant Dinesh Patil and thereafter, accepted the
same and has thus committed the offence.

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6.It is not necessary to go into the factual
aspects of the case. The record would show that the
oral evidence of the complainant - Dinesh Patil was

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criapl307-12

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recorded by the learned Special Judge as PW1 vide
Exh-14 on 19th November, 2011. Cross-examination on
that day was completed. Thereafter, the State filed
an application for recalling the witnesses at Exh-17.
The same was granted by the learned Special Judge
after hearing both the sides and after taking into
consideration the objection raised by the present
applicant. In the circumstances, aggrieved by the

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order of recalling of the witness, the present
appellant has filed Criminal Writ Petition No.
1131/2011 for setting aside the said order and also
for transfer of the case from the file of the
Presiding Officer making certain allegations
regarding the bias in the mind of the judge.

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7.In the circumstances, as the Criminal Writ
Petition was pending, the appellant asked for
adjournment vide Exh-24. The re-examination of the
complainant was taken on 15-12-2011. The cross-
examination was, however, adjourned to 16-12-2011,

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thus making it impossible for the appellant to get
any order from this Court in the Criminal Writ
Petition. Thereafter, the trial continued. Rest of

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(4)

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criapl307-12

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the witnesses were examined and cross-examined.

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Ultimately, the Criminal Writ Petition filed by the
appellant came to be dismissed on merit on 1st and
6th March, 2012. On the next day, the appellant
filed an application under section 311 of the
Criminal Procedure Code for recalling of the witness
for the purpose of cross-examination. The said
application was, however, dismissed by the learned
Special Judge on 26th March, 2012 and thereafter the
judgement came to be delivered on 13th April, 2012.

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8.In the circumstances, Mr. N.B. Suryawanshi,

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learned counsel for the appellant, submits that there
was no fair trial at the hands of learned Special
Judge. There was no meaningful defence which could be

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raised by him in view of rejection of the application
for recalling of the witness. The conduct of the
appellant would show that while persuing his remedy

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against the order of recall, which was pending in
this Court, he continued to cross-examine rest of the

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witnesses and when his writ petition was dismissed,

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on the next date, he applied for recall of the
complainant. However, in view of the fact that the

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criapl307-12

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(5)

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statement of the complainant upon re-examination went
technically unchallenged in view of the orders, he
suffered in the nature of his conviction.

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9.Mr. N.B. Suryawanshi, learned counsel for

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the applicant, has relied on the following

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authorities, in support of his argument.

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(i)2012 (2) S.C.C. 584
Mohd. Hussain Alias Zulfikar Ali v.
State Govt. of Nct of Delhi

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(ii) 2009 ALL SCR 1996 Jayendra Vishnu Thakur v. State of Maharashtra & another

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(iii) 2006 ALL MR (Cri) 1152 (S.C.) Zahira Habibullah Seeikh & another v. State of Gujrat & others

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(iv) 2006 ALL MR (Cri) 1987 Ganesh M Shetty v. Stateof Maharashtra

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(v) 2010 ALL MR (Cri) 2480 Shri Anwarkhan Ajijkhan Pathan v. Mahaveer Nagri Sahakari Pathpedhi Ltd., Chopda.

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(vi) 2010 ALL MR (Cri) 828 Ms. Lavina D’Cosla v. Comtech Systems & another

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(vii) 1975 Cri. Law. Journal 479 Food Inspector, Palghat Municipality v. M/s Sectharam Rice and Oil Mills, Pareli and others

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On the other hand, Mr. G.R. Ingole, learned

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10.

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criapl307-12

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(6)

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A.P.P. submits that the allegations made against the
Judge and the order passed by him vide his order
dated 26th March, 2012, would show that while the
present appellant has cross-examined the other
witnesses, he has purposefully avoided to cross-
examine the complainant. He submits that thus taking
undue advantage of his own wrong, the appellant now
wants that his conviction be set aside.

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11.The history of the case, as given supra,
would show that not only the order of the learned
Special Judge was challenged but even prayer for
transfer of the proceedings from his Court to any
other Court was made. In the circumstances, grant of
adjournment only for one day as detailed supra was
merely illusory. It is to be noted that pending the
Criminal Writ Petition, the appellant continued to
participate in the trial by cross-examining the rest
of the prosecution witnesses those were produced.
Only when writ petition was dismissed, on the next
day thereof, he applied for recalling of the
complainant so that there would be judgement on
merit. It was unfortunately dismissed by the learned

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criapl307-12

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(7)

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Special Judge vide his order dated 26th March, 2012,
by making observations in paragraph No. 5, as
follows:-

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“It is also pertinent to note that, after
declining to cross examine the said witness,
the prosecution has examined many other
witnesses and all the said witnesses have
been cross examined by the learned advocate
for the accused, and therefore, it is
crystal clear that the advocate or for that
matter, the accused, has willfully chosen to
not to cross examine the said witness, and
thus, now, the accused is not entitled to
cross examine the said witness, and
therefore, he need not be recalled for
cross-examination.”

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12.In the circumstances, in my view, since

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prejudice has been caused to the appellant in
defending him properly, the impugned order is liable
to be quashed and set aside, the appeal deserves to
be allowed and the matter needs to be remanded back
to the learned Special Judge with certain directions
so that the order on merit would come in near future.

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criapl307-12

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(8)

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13.In the result, the appeal is allowed. The
judgement and order, dated 13th April, 2012 passed by
the learned Special Judge, Amalner in Special Case
No. 3/2010 is hereby quashed and set aside. The case
is remanded back to the learned Special Judge,
Amalner.

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The appellant is directed to appear before
the learned Special Judge, Amalner on 20th December,
2012. On that day, the learned Special Judge shall
fix the case for cross-examination of the complainant

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by issuing summons whereupon the appellant shall
complete the cross-examination on the date of
appearance of the complainant or within the period of
one week from the date of complainant’s appearance,
except for any unavoidable reason. Thereupon, the
learned Special Judge shall, upon hearing the parties
according to the provisions of Criminal Procedure
Code, dispose of the special case within a period of
three months from the date of conclusion of the
cross-examination.

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14.With the above observations, Criminal

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Application No. 1888/2012 and Criminal Application

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(9) criapl307-12

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No. 1887/2012 stand disposed of. The PR bond and
Surety Bond executed and furnished by the appellant
in the trial court to continue till the date of
delivery of the judgement by the learned Special
Judge.

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[ M.T. JOSHI ]
 JUDGE

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npj/CRIAPL307-12

Pralhad Yadav Patil v. the State of Mah

Case brief

What is this about?

What did the court decide?

Pralhad Yadav Patil v. the State of Mah

Case brief

What is this about?

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