Bombay High Court
Harish S/O Rajendra Rathod vs State Of Mah. Thr. Pso Ps Ramdaspeth ... on 2 August, 2021
Author: Manish Pitale
Bench: Manish Pitale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRI. APPLN. (APL) NO. 621 OF 2021
Harish Rajendra Rathod
-Vs.-
The State of Maha., thr. PSO, P.S. Ramdaspeth, Dist.Akola
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Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders.
or directions and Registrar's orders.
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Mr.N. R. Tekade, counsel for the applicant.
Mr. Sagar Ashirgade, APP for the respondent.
CORAM : MANISH PITALE, J.
DATE : 02.08.2021 Heard the learned counsel for the parties at length.
2. By this application, the applicant (original accused) has challenged orders dated 23/03/2021 and 08/04/2021 passed by the Court of Extra Joint District Judge and Additional Sessions Judge, Akola (Trial Court) in Sessions Trial No.46 of 2018, whereby applications filed by the prosecution for placing on record documents and for calling certain witnesses for examination, have been allowed. According to the applicant, the said applications ought not to have been allowed for the reason that the proceedings before the Trial Court had virtually culminated, as statement of the applicant (accused) under section 313 of the Code of Criminal Procedure (Cr.P.C.) was already recorded.
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3. In the present case, a first information report (FIR) dated 17/01/2018 was registered against the applicant for offence punishable under section 363 of the Indian Penal Code (IPC). Upon investigation, charge-sheet was filed against the applicant for offences punishable under sections 363, 376(2)(j), 376(2)(n) of the IPC, sections 4, 8, 5(l) and 6 of the Protection of Children Against Sexual Offences Act (POCSO Act) and section 3(2)(va) of the Scheduled Caste and Scheduled Tribes Prevention of Atrocities Act, 1989.
4. The trial commenced against the applicant before the Trial Court, wherein witnesses were examined on behalf of the prosecution. Thereafter, statement of the applicant (accused) under section 313 of the Cr.P.C. was recorded. At this stage, the prosecution moved three applications before the Trial Court. The application at Exhibit-50 was filed under section 311 of the Cr.P.C. for permission to call Birth and Death Registrar of District Washim, Headmaster of a school at Akola and Manager of a Guest House at Shegaon for recording their evidence. It was claimed by the prosecution that examination of the said witnesses was necessary for a just decision in the matter. A reply was filed on behalf of the accused, which was marked at Exhibit-51. The prosecution filed an application dated 23/03/2021 marked at Exhibit-52 for placing on record certain documents. The prosecution also filed an application dated 08/04/2021 bearing Exhibit-54 for filing the said documents on record. These documents KHUNTE ::: Uploaded on - 03/08/2021 ::: Downloaded on - 04/08/2021 01:51:10 ::: 19-apl621.21.odt 3/8 were attested copy of school leaving certificate issued by Dinkar Raghunath Patil Secondary School at Akola, a school leaving certificate issued by Primary School at Aheri, District Gadchiroli and the admission register of the said school. It was claimed that the said documents were required to be placed on record in the interest of justice.
5. By the impugned orders dated 23/03/2021 (wrongly typed as dated 23/02/2023) and 08/04/2021, the Trial Court allowed the said applications.
6. Mr. Tekade, learned counsel appearing for the applicant, submits that the impugned orders deserve to be set aside. It is submitted that filing of documents not part of the charge-sheet could not be permitted at the stage when the trial was virtually completed and without recourse to section 173(8) of the Cr.P.C. It was submitted that the prosecution was not entitled to file documents at such a belated stage. As regards the application filed under section 311 of the Cr.P.C., the learned counsel for the applicant submitted that recourse to the said provision was not available to the prosecution in the facts and circumstances of the present case, because the trial was virtually over and the statement of the applicant under section 313 of the Cr.P.C. was already recorded. Reliance was placed on judgment of the Hon'ble Supreme Court in the case of Md. Ghouseuddin v. Syed Riazul Hussain & Anr. (Judgment and order dated 12/07/2021 in Criminal Appeal No.585 of 2021).
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7. On the other hand, Mr. Ashirgade, learned APP for the respondent-State, pointed out that insofar as the documents were concerned, at least one document i.e. school leaving certificate issued by the aforesaid school at Akola deserved to be considered by the Trial Court, for the reason that it was an only attested copy of the said certificate, the copy whereof was already filed along with the charge-sheet before the Trial Court. As regards the other two documents, it was submitted that these were sought to be placed on record for the first time before the Trial Court along with the said applications at Exhibits-52 and 54. It was further submitted that the examination of the witnesses was necessary in order to buttress the case of the prosecution already on record that the victim in the present case was a minor. It was submitted that the relevant documents were already on record and that therefore, the witnesses deserved to be examined for a just decision in the matter.
8. This Court has considered the applications filed on behalf of the prosecution before the Trial Court and the impugned orders passed on such applications. It is also an admitted position that the proceedings before the Trial Court had reached the stage where the statement of the applicant under section 313 of the Cr.P.C. was recorded.
9. Insofar as the applications at Exhibits-52 and 54 are concerned, whereby the prosecution sought permission to place on record additional documents, it KHUNTE ::: Uploaded on - 03/08/2021 ::: Downloaded on - 04/08/2021 01:51:10 ::: 19-apl621.21.odt 5/8 is clear that the school leaving certificate issued by the Primary School at Aheri, District Gadchiroli and the admission register were never filed with the charge- sheet. The filing of additional documents by resort to section 173(8) of the Cr.P.C. is permissible, but in the absence of such procedure being adopted, seeking to place on record such documents, which were never part of the record would certainly prejudice the accused i.e. the applicant in the present case. Therefore, to that extent, the Trial Court has erred in permitting the applications at Exhibits-52 and 54 for placing on record the school leaving certificate issued by the Primary School at Aheri, District Gadchiroli and the admission register.
10. But, insofar as the attested copy of the school leaving certificate issued by Dinkar Raghunath Patil Secondary School at Akola is concerned, it is an admitted position that the copy of the said certificate was already filed on record before the Trial Court along with the charge-sheet. The prosecution sought to place on record the attested copy of the same. Therefore, it could not be said that the applicant would be put to any prejudice if the attested copy of the said document is permitted to be brought on record.
11. Insofar as the application under section 311 of the Cr.P.C. is concerned, the prosecution sought permission to examine three witnesses. Firstly, the Gram Vikas Adikari i.e. the Registrar maintaining the records of birth and death in District Washim, secondly, KHUNTE ::: Uploaded on - 03/08/2021 ::: Downloaded on - 04/08/2021 01:51:10 ::: 19-apl621.21.odt 6/8 Headmaster of Dinkar Raghunath Patil Secondary School at Akola and thirdly, one Chandu Wakode, Manager of the Bhagyashree Palace Guest House at Shegaon. Insofar as the Registrar concerning the register of births and death in District Washim is concerned, there is already document on record of the Trial Court in respect of which he is sought to be examined. The headmaster of the aforesaid school at Akola is sought to be examined in the context of the school leaving certificate, copy of which was already on record of the Trial Court along with charge-sheet. Insofar as the aforesaid Manager of the Bhagyashree Palace Guest House at Shegaon is concerned, there is absolutely no document on record and there are no circumstances pleaded by the prosecution to examine the said witness. It appears that the allegation against the applicant was that he had taken the victim to the guest house and indulged in sexual intercourse, leading to the charge of rape against him, as also allegations under the POCSO Act. But, in the absence of any substratum to call for examination of the said witness at such a belated stage, it appears that such a request on behalf of the prosecution could not have been granted.
12. Insofar as the judgment relied upon by the learned counsel for the applicant is concerned, in the said case, the Trial Court had rejected the application of the prosecution for bringing on record certain documents and the High Court had reversed the same. It is in the backdrop of such facts that the Hon'ble KHUNTE ::: Uploaded on - 03/08/2021 ::: Downloaded on - 04/08/2021 01:51:10 ::: 19-apl621.21.odt 7/8 Supreme Court held that when the Trial Court had given tangible reasons for rejecting the application, the High Court ought not to have interfered, particularly when the statement of the accused also stood recorded under section 313 of the Cr.P.C.
13. This Court is of the opinion that the aforesaid judgment would not apply to the facts of the present case, for the reason that in the present case, the examination of the aforesaid first two witnesses was found to be necessary by the Trial Court for a just decision of the case and this Court does not find any error attributable to the said opinion of the Trial Court. Insofar as the documents are concerned, as indicated above, the Trial Court did err in allowing the applications in their entirety. Therefore, the impugned orders deserve to be partly interfered with.
14. In view of the above, the applications are partly allowed. The order dated 23/03/2011 passed by the Trial Court is confirmed only to the extent of issuance of summons to the witnesses (1) Birth and Death Registrar/Village Development Officer, Malegaon, District Washim, (2) Headmaster, Dinkar Raghunath Patil Secondary School at Akola, while the said order is set aside to the extent that it issues summons to the Manager, Bhagyashree Palace Guest House at Shegaon.
15. Insofar as orders dated 23/03/2021 and 08/04/2021, concerning permission to place additional documents are concerned, it is held that the Trial Court KHUNTE ::: Uploaded on - 03/08/2021 ::: Downloaded on - 04/08/2021 01:51:10 ::: 19-apl621.21.odt 8/8 erred in allowing the applications at Exhibits-52 and 54 in their entirety. The portions of the impugned orders that permit placing on record school leaving certificate issued by the Primary School at Aheri and the admission register are set aside, while the impugned orders are upheld only to the extent of permitting attested copy of the school leaving certificate issued by Dinkar Raghunath Patil Secondary School at Akola, to be placed on record of the Trial Court.
16. The application stands disposed of in the above terms.
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