1 919-Cr.WP-924-2022-J

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

CRIMINAL WRIT PETITION NO.924 OF 2022

Pradip Kundlikrao Kute

Age : 29 Years, Occu: Agriculture,

R/o: Salna, Taluka – Aundha Nagnath,

District – Hingoli

...Petitioner

Versus

1.

The State of Maharashtra,

Through Police Station Officer,

Aundha Nagnath Police Station,

Aundha Nagnath, Dist. Hingoli.

2.

Madhav S/o Sopanrao Darade,

Age : 31 years, Occu. Agriculture,

R/o. Salna, Taluka – Aundha Nagnath,

District-Hingoli.

3.

Sopan S/o. Sakharam Darade,

Age : 75 years, Occu. Agriculture,

R/o. As above.

4.

Vitthal Ganesh Darade,

Age : 24 years, Occu. Agriculture,

R/o. As above.

5.

Uddhav S/o Sopan Darade,

Age : 41 years, Occu. Agriculture,

R/o. As above.

6.

Ganesh S/o Sopan Darade,

Age : 50 years, Occu. Driver,

R/o. As above.

...Respondents

Mr Swapnil S. Rathi, Advocate for the petitioner

Mr P.G. Borade, APP for the Respondent No.1/State

Mr Dhananjay M. Shinde, Advocate for Respondent Nos. 2 to 6

CORAM : SHRIKANT D. KULKARNI, J.

DATE : 6^th SEPTEMBER, 2022

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ORAL JUDGMENT :

1.

Rule. Rule made returnable forthwith. Heard finally with

consent of both the sides at admission stage.

2.

The petitioner has challenged the order passed below Exh.109

in Sessions Case No. 40/2020 by the learned Additional Sessions Judge,

Basmathnagar dated 01.04.2022, thereby, cross-examination of four eye

witnesses came to be deferred.

3.

Heard Mr Swapnil Rathi, learned counsel for the petitioner and

Mr Dhananjay Shinde, learned counsel for respondent Nos. 2 to 6 and

Mr P.G. Borade, learned APP for respondent No.1/State.

4.

Mr Rathi, learned counsel for the petitioner vehemently

submitted that an application moved on behalf of respondent Nos. 2 to 6

(original accused) by taking aid of section 231(2) of Cr.PC, nowhere

assigns any reason for deferment of the cross-examination of the eye

witnesses. He submitted that it is discretion vested with the Court in view

of section 231 (2) of the Cr.PC to defer the cross-examination having

regard to the facts of the case. He submitted that in the present case, not

a single witness is entered into witness box, when the application on

behalf of the accused came to be moved vide Exh.109 under section 231

(2) of the Cr.PC. The application itself is bad in law. Secondly, the

application does not disclose any reason for deferment of the cross-

examination. He submitted that the learned Additional Sessions Judge has

not used his discretionary power having regard to the facts of the case. He

3 919-Cr.WP-924-2022-J

has placed his reliance on the decision of the Hon'ble Supreme Court in

case of State of Kerala Vs. Rasheed reported in AIR 2019 SC 721. He

took me through the relevant paras, more particularly, para Nos. 7, 9, 10

and 12. By taking help of guidelines laid down by the Hon'ble Supreme

Court in above referred citation, Mr Rathi, learned counsel for the

petitioner vehemently submitted that the impugned order is liable to be

quashed and set aside since the original accused have not assigned any

reason in their application for said deferment of the cross-examination. He

submitted that the learned Judge has presupposed certain facts which are

not permissible. The cross-examination can be deferred in view of the

provisions under section 231 (2) of the Cr.PC but the discretion must be

used judiciously having regard to the facts of the case. He submitted that

the learned Additional Sessions Judge has committed an error in allowing

that application. It has caused serious prejudice to the rights and interest

of the prosecution agency. He, therefor