wp 677 2018 j.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

CRIMINAL WRIT PETITION NO. 677 OF 2018

The State of Maharashtra,

Through : Police Inspector,

Jamner Police Station, Dist.

Jalgaon.

...

Petitioner.

VERSUS.

1)

Murlidhar Mansaram Sapkale,

Age 65 years.

2)

Shantaram Murlidhar Sapkale,

Age 38 years,

3)

Ravindra Murlidhar Sapkale,

Age 32 years.

4)

Anil Shankar Shelke, Age 37

years.

5)

Gajanan Damu Malkhede,

Age 32 years.

6)

Sau. Shantabai Murlidhar Sapkale,

Age 65 years.

All r/o. Maldabhadi, Tq. Jamner,

District Jalgaon.

...

Respondents.

...

Mr. S. D. Ghayal, APP for petitioner.

Mr. Satej S. Jadhav, Advocate for respondents.

CORAM

: MANGESH S. PATIL, J.

RESEREVED ON

: 12th February 2019.

PRONOUNCED ON

: 20th February 2019.

JUDGMENT :

Heard.

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2.

Rule. Rule is made returnable forthwith. The learned

advocate Mr. Jadhav waives service of notice on behalf of the

respondents. At the request of both the sides the matter is heard

finally at the stage of admission.

3.

The facts leading to filing of this writ petition under Article

227 of the Constitution of India are as under:

The respondents in Sessions Case No. 11/2016 in Sessions

Court at Jalgaon are facing the charge for the offences punishable

under section 302, 323, 504, 143, 147, 148, 149 of the Indian Penal

Code for allegedly committing murder of one Yogesh Vasant Kapse.

Three of them are under trial prisoners. The prosecution examined

four witnesses including panch witnesses and a Medical Officer. On

13.12.2017 one eye witness and the informant were summoned for

recording their deposition. However, the respondents filed an

application (Exhibit 82) under section 231 (2) of the Code of Criminal

Procedure. It was averred that there are number of eye witnesses.

Considering the nature of the evidence to be adduced as revealed from

their statements recorded under section 164 of the Code of Criminal

Procedure it would be desirable and in the interest of justice that

examination-in-chief of all the eye witnesses to be first recorded and

thereafter the cross-examination of those witnesses may be permitted

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to be commenced. It was averred that the defence will be open once

the cross-examination of these witnesses commences and there was

possibility of remaining witnesses to improve upon, causing serious

prejudice to the respondents. The application was opposed by the

prosecution. It was contended that if such a course was adopted the

respondents would pressurize the witnesses and the application may

be rejected. After hearing both the sides, by the impugned order dated

17.01.2018 the learned Additional Sessions Judge allowed the

application (Exhibit 82) and directed that there was possibility of

subsequent witnesses making improvement if the cross-examination of

the first eye witness was recorded. There was no possibility of

respondents' pressurizing the witnesses and the matter to be proceeded

day-to-day till examination of all the eye witnesses was complete.

Being aggrieved, the State has preferred this writ petition.

4.

I have heard the learned APP as well as the learned advocate

for the respondents. As can be easily discerned , the only legal point

that is involved is regarding the scope and ambit of the provision of

section 232 (2) of the Code of Criminal Procedure and its applicability

to the fact situation of the matter in hand. In my considered view, the

law in this respect is now well settled by the Supreme Court in the case

of State of Kerala Vs. Rasheed, 2018 SCC Online SC 2251. With

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