Allowed

Narayan Dattatraya Polawar v. the State of Maharashtra and Others

Bombay HC12 Feb 2018WP/889/2017

Case brief

AI extract

What is this about?

The High Court allowed a criminal writ petition challenging the closure of evidence due to non-production of key witnesses. The court quashed the order and directed the police to secure the presence of expert witnesses within three weeks, emphasizing that speedy trial rights cannot prejudice the complainant due to police lethargy.

What did the court decide?

The impugned orders quashed. Magistrate directed to re-issue witness summons for two witnesses. State to secure their presence within three weeks and submit report.

Narayan Dattatraya Polawar Vs the State of… — Civil Procedure and Limitation | Bombay HC (2018)

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(Judgment) (1) Cri. W.P. No. 0889 of 2017

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD.

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Criminal Writ Petition No. 0889 of 2017

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District : Nanded

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Narayan Dattatraya Polawar,
Age : 43 years,
Occupation : Agriculture,
R/o. Amdura,
Taluka Mudkhed,.. Petitioner
District Nanded. (Original complainant)

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versus

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1. The State of Maharashtra, Through Police Inspector, Bhagyanagar Police Station, Nanded.

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2. Shivanand Ganeshrao Nilawar, Age : 45 years, Occupation : Business, R/o. Dhanegaon, Taluka & Dist. Nanded.

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3.Narayan Sadashiv Joshi,
Age : 51 years,
Occupation : Business,
R/o. Savangi (Bk.),
Taluka & Dist. Nanded.

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4.Sunil Vishwanath Pashtekar,
Age : 42 years,
Occupation : Lawyer,
R/o. CIDCO, Aurangabad. .. Respondents.

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...........

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Mr. S.K. Kadam, Advocate, holding for Mr. V.S. Kadam, Advocate, for the petitioner. Mrs. P.V. Diggikar, Addl. Public Prosecutor, for respondent no.01.

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Mr. Vijay Sharma, Advocate, for respondent nos.02 to 04.

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(Judgment) (2) Cri. W.P. No. 0889 of 2017

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...........

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CORAM : PRASANNA B. VARALE, J.

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 DATE : 12TH FEBRUARY 2018

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ORAL JUDGMENT :

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Heard Adv. Mr. S.K. Kadam h/f. Adv. Mr. V.S.
Kadam for the petitioner, learned APP Mrs. P.V.
Diggikar for respondent no.01 and Adv. Mr. Vijay
Sharma for respondent nos.02 to 04.

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02.With the consent of parties, the petition is
taken up for hearing and disposal finally.

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03.The petitioner challenges the order passed
by the learned Addl. Sessions Judge-4, Nanded, dated
18.04.2017, thereby dismissing the revision preferred
by the petitioner, being Criminal Revision No. 042 of
2016. The revision was preferred against the order
dated 05.04.2016, passed by the Judicial Magistrate
(F.C.), Nanded, below Exhibit 01 in R.C.C. No. 325 of
2005, copy of which is annexed along with the
petition at pages 26-A and 26-B.

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04.The facts giving rise to the petition can be
summarized as follows :-

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(a)The petitioner is the original complainant. It
was alleged by the petitioner, that the accused
persons i.e. respondent nos.02, 03 and 04, in
connivance to each other, committed forery and

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(Judgment) (3) Cri. W.P. No. 0889 of 2017 fabrication of the document. It was alleged that the accused persons initiated civil proceedings in the Civil Court at Nanded and in the said proceedings, a fabricated will was presented before the court. It was further alleged that when the complainant made an enquiry for the mischief played by the accused persons, the accused persons gave threats of life and abused the complainant. The complaint resulted in lodgment of report being FIR no. 26/2004 for commission of offences under Section 420, 468, 294, 504, 506, read with Section 34 of the Indian Penal Code. The investigating agency on conclusion of the investigation, submitted charge-sheet before the learned Magistrate on 27.03.2005 bearing charge-sheet no. 78 of 2005. Learned Magistrate registered the criminal complaint as R.C.C. No. 325 of 2005. Process was against respondent nos.02 to 04. In the meantime, Regular Civil Suit No. 211 of 2010 was dismissed on 01.04.2013. An appeal was preferred before the learned District Judge at the instance of respondent no.02. The appeal was also dismissed by the learned Principal District Judge, Nanded, on 10.02.2014.

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(b)Perusal of the record show that as many as 09
witnesses were cited in the charge-sheet. Witness
no.07 one Mr. N.R. Parikh and witness no.10 one Mr.
U.M. Ghule were amongst other witnesses and for
securing their presence, summons was issued. Finding
that the witnesses are absent before the court and
there is a failure to move an application on behalf

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(Judgment) (4) Cri. W.P. No. 0889 of 2017

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of the prosecution and the reports were submited
expressing inability to serve the summons witnesses
and inspite of opportunities granted to the police
machinery, no effective steps were taken. As such,
the learned Magistrate passed the order on
05.04.2016. Learned Magistrate by observing that no
purpose will be served keeping the case pending at
the cost of right of accused, passed the order of
closure of evidence of accused and posting the case
for statement of the accused under Section 313 of the
Code of Criminal Procedure, on the next date. Being
aggrieved by the order, revision was preferred.
Learned revision court finding no fault with the
order of the learned Magistrate, dismissed the
revision.

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05.Mr. S.K. Kadam, learned Counsel appearing
for the petitioner, vehemently submitted that out of
these two witnesses, one witness namely, Mr. N.R.
Parikh is a handwriting expert. Mr. Kadam then
submitted that the learned Magistrate by orders dated
20.10.2015, 04.11.2015 and 27.12.2015 granted
opportunities to the prosecution and police machinery
to secure presence of the important witnesses. He
then submitted that on 07.03.2016, it was submitted
on behalf of the prosecution, for issuing the summons
to secure presence of the witnesses namely, Mr. N.R.
Parikh and Mr. U.M. Ghule. Mr. Kadam then submitted
that on 05.04.2016, two reports are submitted to the
court. These reports run contrary to each other.
Mr. Kadam submitted that though the learned

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(Judgment) (5) Cri. W.P. No. 0889 of 2017

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Magistrate in clear and unambiguous terms observed
that the reasons given by the police machinery are
self-contradictory, only on the ground that the
speedy trial is right of the accused and no purpose
would be served by keeping the case pending at the
cost of right of accused, closed the evidence. Mr.
Kadam submitted that Mr. N.R. Parikh being
handwriting expert, his evidence would be very much
important and same would lead the court to assess the
case of the prosecution and then to arrive at a
proper conclusion. Submission is, the judicial
scrutiny of the version of an important witness is
one of the basic factor for a criminal trial. Mr.
Kadam submitted that for the failure of the
prosecution agency or for the lethargy of the policy
machinery, the complainant cannot be put to a serious
prejudice namely, escaping one of the witness from
the test of judicial scrutiny. Mr. Kadam in support
of his submissions, also invited our attention to
these reports of same date i.e. 05.04.2016, placed on
record at page 28 and page 29, respectively.

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06.Mr. Kadam then submitted that this Court may
remit the matter back to the learned Magistrate with
directions to the State to take necessary steps to
secure presence of aforesaid witnesses. Mr. Kadam
then fairly submitted that if the prosecution agency
or police machinery fail to secure presence of the
witnesses within the stipulated period, the learned
Magistrate may pass appropriate orders.

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(Judgment) (6) Cri. W.P. No. 0889 of 2017

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07. Per contra, Mr. Sharma, learned Counsel appearing for respondent nos.02 to 04, while supporting the orders passed by the learned Magistrate, as well as learned revisional court, vehemently submitted that the complainant is expanding his scope and is trying to assume the charge of Public Prosecutor. It is the submission of Mr. Sharma, that such an exercise is clearly impermissible. It is the submission of Mr. Sharma, that what the petitioner wants is stepping in shoes of the Public Prosecutor and to achieve something more than that of a complainant. This course is turned down in view of the judgment of this Court in the matter of Kishore Wadhwani & another Vs. State of Maharashtra & another [2012(5) Mh.L.J. 252] , is the next submission of Mr. Sharma.

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08.On the rival submissions of the learned
Counsel for the parties, I have gone through the
material placed on record. It is not in dispute,
that the case of the complainant while approaching
the Magistrate, is of an allegation against the
accused persons, that they played a mischief and by
fabrication of the document, a forged will deed is
prepared so as to suit the purposes. The witness
i.e. Mr. N.R. Parikh is an important witness being
handwriting expert. He is witness no.07 and one Mr.
U.M. Ghule, A.P.I., is witness no.10. True it is,
that the learned Magistrate granted at least three
opportunities to the prosecution to secure presence
of witness nos.02 to 10 and on 07.03.2016, Asst.

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(Judgment) (7) Cri. W.P. No. 0889 of 2017

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Public Prosecutor submitted application for issuing summons to Mr. N.R. Parikh and Mr. U.M. Ghule. Reports submitted to the court on 05.04.2016 show that on the very day, these two reports refers to different and contradictory reasons for not securing presence of the witnesses. The first report states that as police machinery was busy in bandobast duty and the second report states that the police machinery was unable to trace out the address of the witnesses. Interestingly enough, witness no.10 Mr. U.M. Ghule is a police personnel and was attached to Bhagyanagar Police Station as Asst. Police Inspector. Inspite of this, report was submitted that the police machinery was unable to trace out the address of witness nos.01 and 02. Learned Magistrate though referred to these contradictory reasons, proceeded further observing that speedy trial is the right of the accused and no purpose would be served keeping the case pending at the cost of right of the accused. Mr. Kadam was justified in submitting that though the right of speedy trial is recognized by law, but the same cannot be exercised at the cost of a serious prejudice being caused to the complainant. Learned revisional court also toe the same line as of the learned Magistrate while dismissing the revision.

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09. Mr. Sharma, learned Counsel appearing for respondent nos.02 to 04, placed heavy reliance on the judgment of this Court in the matter of Kishore Wadhwani & another (supra) . There cannot be any dispute on the proposition of law, that the complainant - informant

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(Judgment) (8) Cri. W.P. No. 0889 of 2017

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may seek an audience and the right of participation
of the informant - complainant is a limited right.
There cannot be any dispute on the proposition, that
the informant - complainant cannot assume the charge
of the prosecution which is to be discharged by the
Law Officer, namely, the Advocate General or Public
Prosecutor or Additional Public Prosecutor, as the
case may be, and cannot travel beyond the limited
scope. On the factual aspects referred above, in my
opinion, the complainant is not travelling beyond the
role or scope but his only attempt is to see that the
prosecution agency makes a serious attempt to secure
presence of the important witness like handwriting
expert. Mr. Kadam, learned Counsel for the
petitioner, was also justified in submitting before
this Court, that if such an exercise is undertaken by
the prosecution agency with the sincere efforts, no
prejudice would cause to the respondents - accused
persons. On the contrary, it may only help the court
to reach to the just and proper conclusion. At the
cost of repetition, it may be stated that the reports
submitted to the court on the very date i.e. on
05.04.2016 show that the police machinery was not
making serious attempt to secure presence of the
witnesses and more particularly, witness no.07 Mr.
N.R. Parikh, handwriting expert.

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10.Considering all these facts, I am of the
opinion that Mr. Kadam, learned Counsel for the
petitioner, has made out a case for allowing the
petition.

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(Judgment) (9) Cri. W.P. No. 0889 of 2017

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11.In the result, the criminal writ petition is
allowed.

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(a)The order passed by the learned Addl. Sessions
Judge-4, Nanded, in Criminal Revision No. 042 of
2016, dated 18.04.2017, as well the order passed by
the Judicial Magistrate (F.C.), Nanded, below Exhibit
01 in R.C.C. No. 325 of 2005, dated 05.04.2016, are
quashed and set aside.

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(b)Learned Magistrate is directed to re-issue
witness summons to secure presence of witness no.07
Mr. N.R. Parikh and Mr. U.M. Ghule, A.P.I.,
Bhagyanagar Police Station, Nanded, in R.C.C. No. 325
of 2005. Respondent no.01 shall take all steps and
make sincere efforts to secure presence of these two
witnesses within three weeks from the date of receipt
of judgment of this Court and submit a report before
the learned Magistrate. If respondent no.01 fails to
secure presence of these witnesses within stipulated
period of three weeks and if such report is submitted
to the Magistrate, the Magistrate may pass
appropriate orders on receiving the report, as
expeditiously as possible.

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 ( Prasanna B. Varale )
 JUDGE

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...........

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puranik / CRIWP889.17

Narayan Dattatraya Polawar v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

Narayan Dattatraya Polawar v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

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