Bombay High Court
Kum Nitesh Ekanath Khandagale vs The State Of Maharashtra on 27 November, 2018
Author: Mridula Bhatkar
Bench: Mridula Bhatkar
p509-wp-4782-2018..doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 4782 OF 2018
Kum.Nitesh Ekanath Khandagale ... Petitioner
Vs.
State of Maharashtra ... Respondent
Mr.Vilas N. Mali for the Petitioner.
Mr.A.R. Patil, APP for the Respondent - State.
CORAM: MRS.MRIDULA BHATKAR, J.
DATED: NOVEMBER 27, 2018
P.C.:
1. Upon urgent mentioning, taken on production board.
2. Rule. Rule made returnable forthwith. By consent of the parties,
the Petition is heard finally and disposed of at the stage of admission.
3. This Petition is directed against the order dated 10 th October,
2018 passed by the learned Additional Sessions Judge, Mangaon,
District Raigad in Sessions Case No. 59 of 2016. The petitioner, who is
accused No.1 in Sessions Case No. 59 of 2016, is facing charges under
Sections 302, 201 read with 34 of the Indian Penal Code.
4. The prosecution had examined all the witnesses till today. PW-1
was examined on 14th and 16th March, 2018. PW-2 was examined on
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27th March, 2018. Thereafter, the petitioner/accused No.1 changed the
advocate and at the end of the trial, he moved an application under
Section 311 of the Code of Criminal Procedure, 1973 ("the Cr.P.C.") for
recalling PW -1 and PW-2.
5. The learned counsel for the petitioner/accused No.1 has
submitted that accused No.1 has to be given an opportunity to put up
proper defence to PW-1 and PW-2.
6. The learned APP for the respondent while opposing this Petition
and supporting the order passed by the learned Additional Sessions
Judge, has submitted that the change of the advocate is not a ground
for recalling the witness for cross-examination. He has further submitted
that both the witnesses were cross-examined by the advocate of
accused No.1.
7. I have gone through the evidence of PW-1 and PW-2, as the
question of recalling of these two witnesses is involved. It is to be noted
that the petitioner/accused No.1 is facing serious charge of murder
under Sections 302, 201 read with 34 of the Indian Penal Code wherein
the capital punishment is awarded if the offence is proved.
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8. Under such circumstances, the petitioner/accused No.1 is to be
given a fair and full opportunity to put up his defence by way of cross-
examination. Hence, those two witnesses i.e., PW-1 and PW-2 are to
be recalled. In view of the above, I pass the following order:
ORDER
(i) Writ Petition is allowed in terms of prayer clause (a);
(ii) PW-1 and PW-2 are to be recalled on two dates consecutively and the learned counsel for the petitioner/accused No.1 is directed to complete the cross examination in one date or at the most in two dates consecutively;
(iii) The trial Court to proceed with the matter;
(iv) The Advocate of the petitioner/accused No.1 shall co-operate the trial Court;
(v) The prosecution to produce the witnesses i.e., PW-1 and PW-2 as directed by the Court.
9. Parties to act upon an authenticated copy of this order.
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