NARAYAN Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) BY invoking the extraordinary jurisdiction of this Court under section 482 of the Code of Criminal Procedure, the order dated 26-6-2002 passed by the Ad hoc Additional Sessions Judge in Sessions Trial no. 155 of 1997 directing the recall of the prosecution witnesses under section 311 of the Code of Criminal Procedure (for short the Code) is under challenge in this petition.

(2.) BRIEF facts are as under : the applicant has been prosecuted for the offence punishable under sections 362, 366 and 376 of Indian Penal Code vide Crime No. 143 of 1997 on the allegations that on 6-2-1997 between 11 and 12 hours he abducted the prosecutrix Ku. Nitisha Moghe of 12 years age and had taken her away from the lawful guardianship of her father and did commit rape on her. The first information report was lodged at the police station on 8-2-1997 at 22. 00 hours and after the investigation the charge-sheet was filed. The applicant was arrested on 6 6-1997 and he was released on bail. The accused was put to trial. After framing of the charge the Sessions judge recorded the evidence of eight witnesses. The statement of the accused under section 313 of the Code was recorded on 10-6-2002, the arguments were heard on 13-6-2002 and the case was closed for judgment which was to be delivered on 19-6-2002. On 19-6-2002 the accused made an application requesting for time to furnish the copies of case law, the case was adjourned and was fixed for judgment on 26-6-2002. Then the learned Sessions Judge suo motu in exercise of power under section 311 of the code, on perusal of documents available on record, directed that the witnesses, i. e. the prosecutrix Nitisha (P. W. 1), her mother Mandakini (P. W. 5) and her father Ramesh (P. W. 6) be recalled for the purpose of examination on the point of age of the prosecutrix and also directed to call two witnesses, i. e. Head mistress, Girls High School, Wardha who had issued the School leaving certificate and the other witness Dr. K. R. Borkar, Medical Officer, General hospital, Wardha, who has issued the medical certificate, by his order dated 26-6-2002. This order has been challenged in the present petition.

(3.) MR. Mokadam holding for Mr. Choudhari, learned counsel, for the applicant contended that the prosecutrix, her mother and her father were alread)examined and cross-examined. The prosecution did not submit any applicatior for examination of the additional witnesses. The case was closed for judgment or 26-6 2002 and, therefore, the learned Sessions Judge has committed an error ir exercising suo motu powers for recalling the witnesses under section 311 of the code. He contended that by recalling the witnesses who have been alread)examined and by examining the new witnesses the lacuna left by the prosecutior would be filled up and it was not essential for the just decision of the case to exercise the suo motu powers by the learned Sessions Judge. He contended that another medical officer has already been examined by the prosecution and the name of the Head Mistress, Girls High School, Wardha, was not in the list of the witnesses at all. The impugned order, therefore, cannot be sustained in law and if allowed to stand, it would amount to abuse of process of law and therefore the same may kindly be quashed. In support of these submissions, he relied on the decision of this Court in R. N. Kakkar vs. Hanif Gafoor Naviwala, 1996 Cri. LJ. 365 and also on the decision of Delhi High Court in the case of Virendra Singh and others vs. The State, 1993 Cri. LJ. 1627.