Decided on May 29,2007



S.Ravindra Bhat, J. - (1.) This petition challenges an order dated 19.3.2007 by which the Additional Sessions Judge (hereafter referred to as "the trial Court") declined an application by the petitioner, under Section 311 Criminal Procedure Code, (hereafter "the Code") made certain remarks about the conduct of prosecution vis-a-vis exercising power under Section 53 of the Code and exercised the power under Section 311, summoning one Shri Sunil Kulkarni, for examination. The petitioner has impugned the order on the ground that it declined the request for recall of the 9 witnesses sought for, as in the overall circumstances of the case would cause prejudice; he also claims to be aggrieved by the observations of the trial Court, suggestive of various courses of action available with the prosecution, to compel him to give blood samples.
(2.) The petition was heard by another bench (Chaturvedi, J) on 28th March, 2007, 3rd April, 2007, 18th April, 2007 and 23rd April, 2007. Notice was issued, on 25th April, 2007, and the matter was fixed for hearing on 9th May, 2007. On that latter day, the case was listed before Khetrapal, J, who renotified the matter to 10th May, 2007. On 10th May, 2007, the said learned judge recused hereself and stated that she could not hear the petition; it was accordingly listed before this bench on 11th May, 2007. On that day, counsel expressed that there was urgency in the case, since the trial court had fixed the case for 14th May, 2007, to record the evidence of the newly summoned witness. The court, after hearing parties, declined stay, but asked the trial court to proceed and record the examination in chief of Shri Kulkarni, even while deferring the cross examination. The case was later listed on 25th May, 2007. On that date, arguments were heard in part; the hearing was concluded yesterday evening. The present judgment is delivered in view of the fact that the trial court is to proceed with the matter today.
(3.) In this case the petitioner, accused of having committed offences, inter alia, punishable under Section 304 Indian Penal Code (IPC) on 10.1.1999, was charged with the offence by an order dated 3.8.1999. Learned Senior Counsel Sh. R.K. Anand took me through copies of some of the orders of this Court as well as the trial Court, made at various stages. The recording of prosecution evidence commenced on 18.8.1999 and was adjourned to 30.8.1999. In the meanwhile, the matter was fixed for consideration of an application by the petitioner on 21.9.1999. On 30.8.1999 the request of the prosecution to defer examination of a public witness was declined; accordingly PW-1 Manoj Malik was examined and cross-examined. At that stage PW Sunil Kulkarni had not been served. The other public witnesses were bound down to the next date of hearing i.e. 13.9.1999. In the meanwhile, this Court which was seized of Crl.M(M) 2306/1999 i.e bail matter of the petitioner, adjourned the matter on 7.9.1999 to 21.9.1999, in the light of the previous order of the trial Court. It was contended that on 13.9.1999 the matter was again listed before the trial Court. Counsel relied on the order and submitted that Sunil Kulkarni the witness was present before the Court on that date. It was submitted that the said witness was represented by senior counsel and had alleged harassment by the police. The case was renotified to 23.9.1999 by the trial Court, which proceeded to bind down the witness. In the meanwhile, the bail application of the petitioner was again deferred to 24.9.1999 by this Court. Counsel contended that the trial Court again deferred the matter at the request of the prosecution, to 30.9.1999. All the while, the petitioner was in custody.;

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