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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.474 OF 2021

Arun Gulabrao Gawli

.. Appellant

Versus

State of Maharashtra

.. Respondent

…...

Ms.Akshata B. Desai i/b.Mr.Nitin Sejpal, Advocate for the Appellant.

Mr.S.V. Gavand, APP for the Respondent – State.

…...

CORAM :

PRAKASH D. NAIK, J.

DATED :

MARCH 10, 2022.

P.C. :

Heard. Admit. Appeal is taken up for hearing forthwith.

The question which arise for consideration in this Appeal preferred by

the appellant under the provisions of MCOC Act is whether the

appellant is entitled for copy of statement of approver recorded during

the course of investigation while he was arraigned as an accused.

2

The applicant is aggrieved by the order dated 14^th

February, 2020, rejecting the application preferred by the applicant

seeking copy of statement of approver Sudhir Ghorpade.

3

The submission of the appellant is that the approver was

arrested as accused, and, during the course of investigation, his

SAJAKALI

LIYAKAT

JAMADAR

Digitally signed

by SAJAKALI

LIYAKAT

JAMADAR

Date:

2022.03.30

18:49:53

+0530

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statement was recorded by the investigating agency. He was

thereafter made approver and examined as prosecution witness in the

trial, wherein the appellant is tried as an accused. The approver has

ceased to be an accused. His statement recorded while he was an

accused will have to be treated as previous statement. The appellant

is entitled for copy of such statement, to confront the approver by

cross examination.

4

According to prosecution the statement sought by the

appellant/accused is the statement of the accused and the appellant is

not entitled for copy of the same. While the statement of approver was

recorded, his status was that of accused.

5

The factual aspects necessary to decide this appeal are as

follows:

(i)

The appellant and others were arraigned as accused in MCOC

Special Case No. 5 of 2008 with MCOC Special Case No.13 of

2008 and charged for commission of offences under Sections

387, 506 part II read with Section 120–B of IP, sections 3 and

25 of Indian Arms Act. Sections 3(1)(2) and 3(5) of MCOC Act.

(ii)

Charge was framed against the accused. The trial has

commenced. Witnesses were under examination.

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(iii)

The co-accused Sudhir Ghorpade had preferred an application

for granting pardon and making him approver in accordance of

Section 306 of Cr.P.C. He was declared as approver by the

prosecution. His evidence was recorded as approver. He was

examined as P.W.4 during the trial.

(iv)

During the course of recording his evidence, P.W.4 had admitted

that his statement was recorded during the course of

investigation. It was recorded while he was in police custody.

The said statement was not 昀椀led by the concerned investigating

of昀椀cer along with the charge – sheet.

(v)

Application was preferred vide Exhibit - 177 on behalf of the

appellant for providing previous statement of approver. It was

prayed that, directions be issued to the prosecution to produce

statement of P.W.4 recorded by the police of昀椀cer after his

arrest.

(vi)

The learned Special Judge called upon the prosecution to 昀椀le

say. The prosecution opposed the application on the ground that

statement made by any person accused of an offence is

inadmissible and such statement cannot be produced or given to

the accused.

(vii) The learned Special Judge rejected the said application by order

dated 14^th February, 2020, on the ground that the appellant is

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not entitled for copy of such statement. The statement of

Sudhir Ghorpade is hit by provisions of Sections 25 and 26 of

the Evidence Act.

(viii) The appellant presented application vide Exhibit-180 for review

of the order dated 14^th February, 2020. The application was

opposed by prosecution b