Quashed

Sharad Hiraman Mohol v. the State of Maharashtra

Bombay HC21 Sept 2013WP/3331/2013

Case brief

AI extract

What is this about?

In a criminal writ petition, the High Court quashed an order rejecting the petitioner's application for trial in his presence. The trial court had relied on an unaided oral discussion and the petitioner's concern for security to order video conferencing, despite no formal prosecution application existing on the record.

What did the court decide?

Quashed and set aside the impugned order rejecting the petitioner's application for trial in his presence. Trial must be conducted in ordinary mode.

Sharad Hiraman Mohol Vs the State of Maharashtra — Criminal Trial and Appeal | Bombay HC (2013)

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kps

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL WRIT PETITION NO.3331 OF 2013

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Sharad Hiraman Mohol. ..Petitioner -Versus- The State of Maharashtra and another. ..Respondents

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...............

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Mr.S.R.Chitnis, Senior Advocate a/w Mr.Nandu Phadke, Mr.Ashish Sawant i/by Mr.Tapan Thatte, for the Petitioner. Mrs.A.S.Pai, APP, for the Respondent/State.

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...............

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CORAM : S. C. DHARMADHIKARI AND G.S. PATEL, JJ.

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Date : 21^st September 2013.

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P.C.:

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1 This Writ Petition challenges the order below Exhibit-356 in Sessions Case No.318/2010. The order under challenge passed on 04.09.2013 purports to reject an application made by the Petitioner/under trial prisoner, to conduct the trial in the sessions case in his actual physical presence.

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2 Mr.Chitnis, learned Senior Counsel appearing for the Petitioner, has raised before us several contentions including that the order passed by the learned Judge violates the mandate of Article 21 of the Constitution of India and guarantee of fair trial. It is submitted that complete misreading of the legal provisions and the judgment of the

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Honourable Supreme Court, in the case of State of Maharashtra v/s Dr.Prafulla Desai reported in 2003(4) SCC 601 , vitiates the conclusion of the learned Judge.

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3 When this Criminal Writ Petition was initially argued and even yesterday, what we have noted from the petition and its annexures is that the learned Judge has based his conclusion on the point of safety and security of the Petitioner/prisoner and that is how he holds that the trial of the Sessions Case insofar as the Petitioner is concerned can be held by Video Conferencing.

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4 When this was the conclusion reached and the reasonings proceeded on these lines, we inquired from Mrs.Pai, learned APP, as to whether the prosecution in this Sessions Case had made any application requesting the learned Judge to hold the trial in the case of the Petitioner/ accused by Video Conferencing. Mrs.Pai sought time to take instructions from the concerned officers including the District Government Pleader/ Public Prosecutor appearing in the Trial Court. At her request, the matter was posted today.

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5 Today, when this Writ Petition was called out, on instructions Mrs.Pai states that the prosecution did not make any application before the learned Judge requesting for holding the trial by Video Conferencing, but on account of some oral discussion in the Court, the Petitioner/ accused made the application on which the impugned order has been passed.

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6 Thus, the matter has proceeded in very strange manner. On account of some oral discussion taking place in the Court, the Petitioner/ accused understood that the learned Judge has decided to hold the trial in his case by Video Conferencing. Therefore, he made the subject

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application apprehending that he will not be produced during the course of trial at all. His application has been decided by taking into consideration his safety and security.

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7 To our mind, the learned Judge should not have or rather should have refrained from any oral discussion on such vital and serious aspect. If the Petitioner’s safety and security is his concern and equally that of the prosecution, then, the prosecution should have moved, in this case, the requisite application. The Sessions Case was pending from 2010. There was no application on the file of the learned Judge from the prosecution’s side requesting that the trial be held by video conferencing and in the case of the Petitioner/ accused because there is any threat to his life or there is genuine or bonafide concern for his safety and security. It was then not open for the learned Judge to have taken upon himself to decide this issue and in the manner which is most unsatisfactory.

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8 We do not say anything more as that would mean that the prosecution is disabled to make any such application hereafter. If the prosecution desires to make such application, it is open for it to file the same, but the learned Judge, while dealing with the same, should not only allow the Petitioner/ accused to submit his written objection/ reply, but hear him at length and particularly on the point of guarantee of fair trial enshrined in Article 21 of the Constitution of India. The learned Judge must also consider as to whether, as held by the Honourable Supreme Court in the judgment in the case of State of Maharashtra v/s Dr.Prafulla Desai (supra), that the entire trial can be held by Video Conferencing or the judgment or guidelines therein is restricted to the examination of a particular witness by the process and mode of Video Conferencing. We do not deem it proper to express any opinion on the

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rival contentions, but we clarify this only because Mr.Chitnis has an apprehension that in the event the Prosecution files a fresh application, the learned Judge would be greatly influenced by his own conclusion arrived at in the impugned order and will not deal with the same in accordance with law. We clarify that in the event a fresh application is made by the Prosecution and supported by requisite material, the learned Judge should deal with it strictly in accordance with law and uninfluenced by any findings and observations made in the impugned order.

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9 Since the Prosecution has clarified that it had not made any application on which the impugned order has been passed, we quash and set aside the impugned order. Needless to clarify that our order does not mean that the Prosecution must make an application. All that we have recorded is the statement of Mrs.Pai that the Prosecution is desirous of making such application. In no case, our order shall be taken as postponement of the trial or not to hold it in ordinary mode. All contentions are kept open for being raised at appropriate stage.

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10 The Writ Petition is, accordingly, disposed of.

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( G.S.PATEL, J.)

Sharad Hiraman Mohol v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Sharad Hiraman Mohol v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

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