WP-417-22.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

CRIMINAL WRIT PETITION NO. 417 OF 2022

Sadashiv Rangnath Rajmane

and Another

..PETITIONERS

VERSUS

State of Maharashtra and Another

..RESPONDENTS

....

Mr. Ajinkya Kale, Advocate h/f Talekar and Associates for petitioners

Mrs. G.L. Deshpande, A.P.P. for respondent no.1 - State

....

CORAM : R.G. AVACHAT, J.

DATED : 06^th APRIL, 2022

PER COURT :

1.

Heard.

2.

The challenge in this petition is to the order dated 25^th February,

2022 passed by the learned Additional Sessions Judge, Gangakhed in

Criminal Revision Application No. 12 of 2009. Vide the impugned order,

application (Exh.43) moved by the prosecution for production of final

medico-legal certificate and issuance of witness summons to the doctor

concerned in proof of the said certificate, came to be allowed.

3.

Learned counsel for the petitioner would submit that recording of

the evidence in the case was over. The matter was fixed for arguments. The

final medico-legal certificate was not part and parcel of the charge-sheet. The

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prosecution would not be allowed to fill up the lacuna in the investigation. In

support of his claim, the learned counsel relied on the judgment of this Court

in the case of Fateshsinh Mohansinh Chauhan and Ors. Vs. Union Territory of

Dadra and Nagar Haveli, 2003 (4) Mh.L.J. 73, as under :-

“The lacuna is not something which is through oversight in the

management of the prosecution or inadvertence with which

proper evidence was not adduced where in such cases the Court is

expected to be magnanimous in permitting such mistakes or

inadvertence. The lacuna in the prosecution case has a meaning of

inherent weakness in the prosecution case. The prosecution case is

one which is submitted along with the charge-sheet. If such lacuna

is left at the level of the filing of charge-sheet, that means if there

is any lacuna in the investigation, that lacuna cannot be overcome

by the prosecution during the course of trial or by taking recourse

to the provisions of section 311 of Criminal Procedure Code.”

4.

The learned A.P.P. would, on the other hand, relied on the

judgment of the Apex Court in the case of V.N. Patil Vs. K. Natarajan Kumar

and Ors. in Criminal Appeal No. 267 of 2021 as :-

“18.

The aim of every Court is to discover the truth. Section

311 of Cr.P.C. is one of many such provisions which strengthen

the arms of a court in its effort to unearth the truth by procedure

sanctioned by law. At the same time, the discretionary power

vested under Section 311 Cr.P.C. has to be exercised judiciously

for strong and valid reasons and with caution and circumspection

to meet the ends of justice.”

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5.

The petitioners herein are the accused in Regular Criminal Case

No. 87 of 2018. They are alleged to have caused grevious hurt to the

complainant. No final medico-legal certificate was collected by the

investigating officer. The medical officer at Sonpeth had issued a provisional

medico-legal certificate to the investigating officer. As such, it was lapse on

the part of the investigating officer to collect final medico-legal certificate and

file it alongwith charge-sheet. What has been sought by the prosecution was

issuance of summons to the medical officer for production of such certificate

and his examination in proof thereof. The petitioners would have every

opportunity to traverse the prosecution case on production of final medico-

legal certificate and examination of the proposed witnesses.

6.

This Court finds the order of learned Additional Sessions Judge to

be in furtherance of achieving the ends of justice. It is reiterated that the

petitioners would have every opportunity to traverse the evidence i.e. sought

to be let it by allowing application (Exh.43). As such, this Court finds no

merits in the present criminal writ petition. Hence dismissed.

( R.G. AVACHAT, J. )

SSD

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