Sandip Pannalal Mahule v. The State Of Maharashtra

1 Cr WP 1712 of 2016

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD Criminal Writ Petition No.1712 of 2016 Sandip s/o Pannalal Mahule Age 29 years, Occupation: Labour, R/o Galle Borgaon,Taluka Khultabad, District Aurangabad.

.. Petitioner.

Versus

The State of Maharashtra Through Police Inspector, Police Station, Khultabad District Aurangabad.

.. Respondent.

-------- Shri. Abhyaysinh K. Bhosle, Advocate, for petitioner. Shri. G.O. Wattamwar, Additional Public Prosecutor, for respondent.

---------- CORAM: T.V. NALAWADE, J.

DATE : 24 JANUARY 2017 ORAL JUDGMENT :

1) Rule, rule made returnable forthwith. Heard both the sides by consent for final disposal. 2) The present proceeding is filed to challenge the order made on Exhibit 66 in Sessions Case No.7/2012

2 Cr WP 1712 of 2016 pending in the Court of the learned Additional Sessions Judge Aurangabad. It appears that in the past, when Advocate for the present petitioner filed "no instructions pursis", orders of "No Cross" were made in respect of PW 1 and PW 2. These orders were made in 2014 and 2015 when the case is filed for offence punishable under section 376 of the Indian Penal Code. The application was moved at Exhibit 49 for permission to cross examine these witnesses. The application was allowed subject to cost of Rs.600/- by order dated 25-8-2016. It appears that cost amount was not deposited and then on 19-11-2016 application at Exhibit 66 was filed for permission to deposit the cost as it was not deposited within time given by the Court. This application is rejected by the trial Court.

3) When it is a police case and charge for serious offence like offence under section 376 IPC is framed, opportunity to cross-examine the prosecution witnesses cannot be denied. In criminal cases, order like "No Cross" is not expected to be made. If there is nobody to represent the accused, in ordinary course, the Court is expected to

3 Cr WP 1712 of 2016 appoint some counsel as amicus curiae for the accused through Legal Aid, at the cost of the Government. If the accused is not cooperating then best way is to cancel his bail, put him behind the bars and then take steps like appointing counsel at the cost of the Government. In the present matter the accused is on bail and he is now ready to deposit the cost amount. In view of the aforesaid circumstances and the right of the accused to contest the matter, this Court holds that the order made by the learned Judge of the trial Court needs to be set aside. 4) The petition is allowed. The order dated 19-112016 made on Exhibit 66 is set aside. The application Exhibit 66 is allowed. The cost amount is to be deposited on or before 3 February 2017 and the Court is to take further steps. It will be open to the trial Court to take steps like cancellation of bail if the accused is not cooperating, in future. Rule mad absolute in aforesaid terms.

Sd/- (T.V. NALAWADE, J. ) rsl