Hamid Khan Ahmed Khan Indapurwala v. The State Of Maharashtra And ORS

NISHA SANDEEP CHITNIS SANDEEP CHITNIS Date: 2021.08.23 10:31:48 +0530

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.237 OF 2021 Hamid Khan Ahmed Khan Indapurwala ...Applicant

Versus

The State of Maharashtra and Ors.

...Respondents

Mr. D. S. Mhaispurkar a/w Ms. Siddhi Bhosale, for the Applicant. Mr. A. R. Patil, A.P.P for the Respondent No.1- State. Mr. K. H. Giri, for the Respondent Nos. 2 to 6. CORAM : REVATI MOHITE DERE, J.

DATE : 17th AUGUST, 2021 P.C. :

1.

Heard learned counsel for the parties.

2.

By this application, the applicant has impugned the order dated 29th February 2020, passed by the learned Metropolitan Magistrate, 26th Court, Borivali, Mumbai, below Exhibit - 221 in C.C. No.494/PW/2003, by which the learned Magistrate permitted the respondent Nos.2 to 6 to recall witnesses - Sanjay Narkar and Shrikant Nivatkar under Section 311 of the Code of Criminal Procedure. 1/3

3.

Learned Counsel for the applicant states that the respondent Nos.2 to 6 cannot be permitted to fill up the lacunae in the crossexamination. He, however, submits that the applicant has no objection if the cross-examination is permitted only with respect to the events subsequent to receipt of the final opinion given by the handwriting expert on 30th August 2018.

4.

Learned Counsel for the respondent Nos.2 to 6 states that the said respondents will cross-examine witness - Sanjay Narkar only with respect to events that have taken place post 30th August 2018 i.e. after receipt of handwriting expert opinion. It is pertinent to note that the respondent Nos.2 to 6 had filed an application and had requested to recall witnesses - Sanjay Narkar and Shrikant Nivatkar (Investigating Officers), which application was allowed by the learned Magistrate vide order dated 29th February 2020. It appears that Investigating Officer - Shrikant Nivatkar has expired and hence recall of only Investigating Officer - Sanjay Narkar is sought.

5.

Considering that both the parties i.e. learned counsel for the applicant and learned counsel for the respondent Nos.2 to 6 are ad-idem on the point that the said witness - Sanjay Narkar will be questioned only 2/3

with respect to the events that have taken place post 30th August 2018, the impugned order requires no interference.

6.

Needless to state, that the power under Section 311 Cr.PC cannot be used to fill in the lacunae.

7.

Considering the aforesaid, the respondent Nos.2 to 6 are permitted to cross-examine Investigating Officer - Sanjay Narkar, only with respect to the events post 30th August 2018. 8.

In view of the aforesaid, no interference is warranted in the impugned order.

9.

Application is accordingly disposed of on the aforesaid terms. REVATI MOHITE DERE, J.

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