Judgment

cwp380.22

1

IN THE HIGH COURT OF JUDICATURE AT BOMBAY :

NAGPUR BENCH : NAGPUR.

CRIMINAL WRIT PETITION No. 380/2022.

Jagdish Pardeshi Rathor,

Aged about 32 years, Occupation

Labour, resident of Abhyankar Squire,

Itwari Peth, Umred, District Nagpur.

(In jail - Central Prison,Nagpur.)

... PETITIONER.

VERSUS

1.The State of Maharashtra,

through P.S.O., Umred,

Nagpur.

2.X.Y.Z. in Crime No.315/2021

registered at P.S.O. Umred.

... RESPONDENT

S .

---------------------------------

Mr. A.S.Band, Advocate for the Petitioner.

Mr.S.M. Ukey, Addl. P.P. the Respondent No.1.

Service of Notice on Respondent No.1 is dispensed with.

----------------------------------

CORAM : VINAY JOSHI, J.

DATE : JUNE 21, 2022.

ORAL JUDGMENT :

Rgd.

RAKESH GANESHLAL DHURIYA

21.06.2022 17:36

Judgment

cwp380.22

2

Heard learned Counsel for the petitioner and respondent

no.1. Considering the controversy involved, notice to respondent

no.2 is dispensed with. With consent of the learned Counsel present

for the parties, the matter is taken up for final disposal by issuing

Rule, making the same returnable forthwith.

2.

The petition raises a challenge to the rejection of

application for recall of witness by the trial Court vide order dated

18.05.2022. It is argued by the learned Counsel for the petitioner

that the petitioner, facing trial under Special Act has moved an

application (Exh.37) seeking recall of P.W.1 – mother of the victim

under Section 311 of the Code of Criminal Procedure.

3.

It is further argued that though the mother of the victim

[informant] was cross-examined, however as the copy of statement

recorded under Section 164 of the Code was not made available on

the same date, certain contradictions have not been brought on

record. It is the submission that due to belated disclosure of 164

statement, the petitioner did not get proper opportunity to consider

Rgd.

RAKESH GANESHLAL DHURIYA

21.06.2022 17:36

Judgment

cwp380.22

3

the same and put it to the witness to prove contradictions.

4.

With the assistance of the learned Counsel present for the

parties, I have perused the record. It reveals from the evidence of

P.W.1 [informant] that during cross-examination a general

suggestion was given that whatever is stated by the witness in

Exh.22 [Statement under Section 164 of the Code] is false. Infact,

in order to prove the omissions and to establish contradictions,

specific portion of prior statement of the witness has to put to her

during cross-examination.

5.

The Court is invested with wide powers to recall the

witness. It is apparent that though the statement under Section 164

of the Code was made available, however, the contradictions were

not brought on record. The victim girl is already examined by the

trial Court. The learned Counsel for the petitioner states that the

witness [informant] would be cross-examined for limited purpose

and there would be no prejudice, rather it would be to further fair

trial. Having regard to the above facts, following order is passed.

Rgd.

RAKESH GANESHLAL DHURIYA

21.06.2022 17:36

Judgment

cwp380.22

4

ORDER

[a]

Writ Petition is allowed.

[b]

The impugned order dated 18.05.2022 passed by the

Extra Joint District Judge and Additional Sessions Judge

(Special Judge, POCSO Court), Nagpur below Exh.37 in

Special Cri.Child Case No.373/2021 is hereby quashed

and set aside.

[c]

The application Exh.37 stands allowed to the limited

extent of only bringing contradictions on record from the

informants statement recorded in terms of Section 164 of

the Code of Criminal Procedure.

[d]

The petitioner shall cross examine the witness on the date

of first appearance of the witness and if he remains

absent or seeks adjournment, his right to recall shall

stand forfeited.

[e]

Rule is made absolute in the aforesaid terms with no

order as to costs.

JUDGE

Rgd.

RAKESH GANESHLAL DHURIYA

21.06.2022 17:36