The main legal point established in the judgment is that applications under Section 311 of Cr. PC must be made bonafide and balanced carefully with relevant considerations to prevent failure of justice.

JUDGMENT

M. S. Sonak, J. - Heard Mr. Bhobe, learned counsel for the Petitioner and Mr. Dhargalkar, learned Additional Public Prosecutor for the State.

2. The challenge in this petition is to the judgment and order dated 6th November, 2019 made by the Sessions Judge, South Goa, at Margao and the order dated 9th January, 2019 by the learned JMFC, 'F' Court, Margao, rejecting the Petitioner's application under Section 311 of Cr. P.C.

3. The Sessions Judge in the impugned judgment and order dated 6th November, 2019 has held that no revision application was maintainable to question the JMFC's order dated 9th January, 2019. However, the Sessions Judge has decided the matter on merits as well since the contentions on merits were pressed before the Sessions Judge. This means that concurrently two Courts have held that the Petitioner's application under Section 311 of Cr. PC could not be allowed.

4. In this case, the Petitioner is being prosecuted for offence punishable under Section 193 of IPC. For the facts and reasons which are borne out in this Court's judgment and order dated 10th October, 2017 in Criminal Writ Petition No.12 of 2015, this Court had directed the JMFC to proceed to decide the case from the stage of framing of charge in compliance with Section 343 (1) of Cr. PC. This was mainly in the context of the decision of the Hon'ble Supreme Court in the case of State of Goa Vs Jose Maria Albert Vales, (2017) 9 Scale 527 in which it has been held that for considering the provisions of Section 343(1) of Cr.PC, the procedure in respect of cases instituted otherwise than on police report is not attracted qua the complaint under Section 340 and/or Section 341 of Cr.PC.

5. After the matter was restored to the file of the JMFC, the charge was framed in compliance with the provisions of Section 343(1) of Cr. PC. The record also discloses that in the earlier round the complainant, i.e. the District and Sessions Judge was examined as PW1 on 6th February, 2010 and relevant documents were produced through this witness including the complaint. Thereafter, yet another witness (PW2) was also examined. Both these witnesses were extensively cross examined. The complainant i.e. District and Sessions Judge was thereafter appointed as a Judge of this Court and has since retired.

6. After the charge was framed in compliance with the provisions of Section 343(1) of Cr.PC, the same was explained to the Petitioner and his plea thereof was also recorded vide Exhibit 88.

7. Thereafter, the prosecution filed an application under Exhibit 92 on 6th April, 2018 praying that the evidence recorded earlier should be considered as an evidence of prosecution even after framing of the charge and during the trial in terms of Section 242 of Cr.PC. To this application, the learned counsel for the Petitioner gave a specific no objection and even undertook to endorse this no objection on the application made by the prosecution (Exhibit 92). Thereafter, the learned counsel for the Petitioner, did not at any stage claim that he had objected the application at Exhibit 92 or that he had not given his no objection for allowing the prayer therein but the learned counsel simply refused to make necessary endorsement on Exhibit 92. The learned Sessions Judge has observed that this was quite unfortunate. Fortunately, before none of the Courts was any plea taken on behalf of the Petitioner that the counsel for the Petitioner had objected to the application at Exhibit 92 or that the learned counsel had not given any no objection for grant of prayer in Exhibit 92.

8. The matter thereafter proceeded and it is only after the conclusion of record of statement under Section 313 of Cr.PC, the Petitioner took out application under Section 311 of Cr.PC seeking recall of retired High Court Judge as well as other witnesses.

9. If the application seeking to invoke provisions of Section 311 of Cr. PC is perused then there are absolutely no reason or rather convincing reason set out for seeking such