1 WPCr 155-18

IN THE HIGH COURT OF BOMBAY AT GOA

CRIMINAL WRIT PETITION NO. 155 OF 2018

Lawrence Dias,

S/o. Anthony Dias, age 30 years,

Indian national, R/o. H.No.188,

Mestabhat Merces,

Tizwadi, Goa.

... Petitioner

Versus

The State of Goa

Through Police Prosecutor,

Panaji Goa

... Respondent

Shri Vithal Naik h/f. Shri V. Rodrigues, Advocate under Leal Aid

Scheme for the petitioner.

Shri S.R. Rivankar, Public Prosecutor for the respondent.

Coram:- NUTAN D. SARDESSAI, J.

Reserved on : 7^th December,2018

Pronounced on : 11^th December,2018

Judgment :

1.

Heard forthwith with the consent of the learned Advocates

for the parties.

2.

Rule.

3.

Shri S.R. Rivankar, learned Public Prosecutor waives service

of notice on behalf of the respondents.

2 WPCr 155-18

4.

This petition takes exception to the order dated

07/06/2018 passed by the Court of the Sessions Judge, North Goa

Panaji pursuant to which the application of the petitioner for recall

of the witnesses under Section 311 Cr.P.C. has been dismissed and

by invoking the jurisdiction of this Court under Article 227 of the

Constitution of India and Section 482 of Cr.P.C.

5.

Heard Shri V. Naik, learned Advocate for the petitioner who

submitted that the Advocate earlier representing the petitioner

had not properly conducted the cross-examination due to which

the defence of the petitioner was seriously prejudiced and there

was a possibility of a failure and miscarriage of justice. The

petitioner sought for the recall and re-examination of the

witnesses to confront them with the documents in his possession

namely the Discharge Card which would go to establish that he

was nowhere in the vicinity of the scene of crime when the alleged

incident took place. The petitioner would be seriously prejudiced in

case this opportunity was denied to him. He placed reliance in P.

Sanjeeva Rao v/s. State of Andra Pradesh [(2012)7 SCC 56]

in support of his contention.

6.

Shri S.R. Rivankar, learned Public Prosecutor on behalf of

the State contended that there was no reason to allow the recall

3 WPCr 155-18

of the prosecution witnesses considering even the case set out by

the petitioner. The petitioner was bitten by a snake and was

treated initially in the casualty which took sometime on the night

of 11/11/2014 and was admitted in the hospital only on

12/11/2014 as per the Discharge Card now sought to be produced

on record by way of confronting the witnesses earlier examined by

the prosecution. There was no basis to allow the application for

the recall of the prosecution witnesses who were medical

professionals and subjected to gross humiliation and misbehavior

at the instance of the petitioner who had taken law in his hand

and assaulted one of the Doctors on duty. He placed reliance in

Rajaram Prasad Yadav v/s. State of Bihar and another

[(2013) 14 SCC 461] to buttress a plea that invoking the

jurisdiction of the Court under Section 311 of Criminal Procedure

Code was not a routine and empty formality and that it was only

in instances where grave prejudice would be caused to the

accused when such an application could be allowed while

reiterating the principles culled out in Rajaram Yadav (supra), to

substantiate his contention and pressed for the dismissal of the

petition.

7.

i have considered the submissions of Shri Naik, learned

Advocate for the petitioner and Shri S.R. Rivankar, learned Public

4 WPCr 155-18

Prosecutor, the judgments relied upon in P. Sanjeeva Rao and

Rajaram Yadav (supra) and besides the provisions of Secti