Santosh S/O Uttam Wagh v. The State Of Maharashtra

IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

AURANGABAD BENCH, AURANGABAD CRIMINAL WRIT PETITION NO. 1242 OF 2016 Santosh s/o Uttam Wagh

...Petitioner

VERSUS

The State of Maharashtra

...Respondent

.....

Shri S.A.Gaikwad, advocate for petitioner Shri R.V.Dasalkar, A.P.P. for respondent .....

CORAM : N.W.SAMBRE, J.

DATED : 28th September, 2016 PER COURT :- On 31.12.2015 in Sessions Trial No. 35 of 2014, pending on the file of the learned Additional Sessions Judge, Vaijapur, accused no.1 moved an application for grant of adjournment, as his counsel was absent because of ill-health. The said application came to be rejected by the learned Court below on the ground that the application was moved at belated stage, as examination-in-chief of PWs 5 and 6 was already over.

2.

It appears that on 7.7.2016 after the accused changed his lawyer, perhaps as the earlier lawyer was not available, an application came to be moved for recalling PWs 5 and 6. The said application was resisted by the learned P.P. on the ground that once the examination-in-chief of subsequent witnesses was already recorded, the prosecution case will be hampered if the application/permission for cross-examination is allowed. The learned Additional Sessions Judge rejected the said application (Exh.82) by order dated 6.8.2016. As such the present petition. 3.

Shri Gaikwad, learned counsel for the petitioner submits that it is because of the health issue of earlier lawyer, the crossexamination of PWs 5 and 6 was not conducted. According to him, since the said lawyer did not appear and was in know how of the entire matter, the accused could not take steps to change the said lawyer immediately, and as such, there is delay of six months for recalling the witnesses.

He would then urge that no prejudice would be caused if an opportunity is granted, as the principles of natural justice are required to be followed.

4.

Learned A.P.P. while opposing the petition strenuously resisted the claim of the petitioner on the ground that the petitioner was not diligent while moving the application in question. He would then submit that if the petition is allowed, this Court should impose heavy costs on the accused.

5.

Having bestowed my thoughts to the submissions made, it is required to be noted that though the trial has commenced, still, the same is not at an advanced stage.

6.

Apart from above, the learned counsel Shri Gaikwad has given an undertaking that if an opportunity is given, the petitioner shall not seek any adjournment before the Sessions Court and

shall complete the cross-examination of the said witnesses (PWs 5 and 6) on the given date.

7.

In the interest of justice and so as to give fair opportunity to follow the principles of natural justice, in my opinion, the prayer of the petitioner for cross-examination of witnesses (PWs 5 and 6) needs to be allowed.

8.

In view of above, the impugned order, dated 6.8.2016 is set aside.

9.

The undertaking given by the petitioner that he shall not seek further adjournment and shall cross-examine both the witnesses on the given date is accepted.

10.

Application Exh. 82 stands allowed in the above terms, subject to payment of costs of Rs.5,000/-, to be deposited before the Trial Court, within two weeks from today.

11.

Out of Rs.5,000/-, an amount of Rs.2,500/- shall be paid to the witnesses (PWs 5 and 6) and balance amount of Rs.2,500/- be paid to the prosecution.

12.

Criminal Writ Petition stands allowed in above terms.

(N.W.SAMBRE, J.) dbm/crwp1242.16