Single-judge High Court dismissed the criminal application challenging the grant of recall of a witness and allowance of a reply to a default notice. Court held no failure of justice warranted interference.
application dismissed; no interference with lower Judge's order.
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apl-407-13
IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION
rpa
CRIMINAL APPLICATION NO.407 OF 2013
Vithal @ Kalyan Abhijit Varekar .. Applicant Vs. The State of Maharashtra .. Respondent
Mr. Moin Khan, Advocate for the Applicant. Mr. A. r. Patil, A.P.P. for Respondent – State.
CORAM : K. U. CHANDIWAL, J. DATED : JULY 16, 2013.
P.C. :
Heard.
2 In Sessions Case No.702 of 2010 an application
below Exhibit – 45 was moved to recall P.W. No.7 Investigating Officer P.S.I. A. N. More. It was pointed out that he had recorded statement of injured – complainant at the hospital and thereafter filled up the format and register the F.I.R. at Police Station, however, nobody was left to be shown to him.
3 The accused – applicant availed eight dates to recall
the said applicant. The learned Judge was constrain to allow
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apl-407-13
application by order dated 22nd February, 2013. Then an application was moved to recall the order as there was no say filed by the accused – applicant. The learned Judge entertained said application, allowed the applicant to file reply then gave rehearing to the applicant, thus, the above order is questioned.
4 The learned Judge considered scope of Section 311 of the Code of Criminal Procedure that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of witnesses examined by the parties. It cannot be said that the prosecution was permitted to fill in lacuna.
5 Reliance to the Judgment of this Court in the matter of Shridhar Waman Surushe V/s. State of Maharashtra1 , travel all together in different structure. It was a case of 494 I.P.C. bigamy, in which after statement under Section 313 of Cr.PC. the accused therein asserted that he had no marital relations with the original complainant, in that situation, the alleged wife moved an application for recalling. No such eventuality is surfacing in present scenario.
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6 The order of the learned Judge, therefore, does not
call for interference. Criminal Application is dismissed.
(K. U. CHANDIWAL, J.)
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3 issues framed by the court
Whether the recall of the Investigating Officer during criminal proceedings amounts to failure of justice under Section 311 Cr.PC.
Whether the lower Judge erred in entertaining an application to dismiss a motion in default of filed reply.
Whether the circumstances distinguish this case from Shridhar Waman Surushe v. State of Maharashtra.
Colour shows how this judgement treated each authority
Shridhar Waman Surushe V/s. State of MaharashtraRelied on¶5
Shridhar Waman Surushe V/s. State of Maharashtra 1
1 provisions across 1 enactments
Vithal @ Kalyan Abhijit Varekar
The State of Maharashtra
K. U. CHANDIWAL
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
