Case Note & Summary
The applicants, Rajdeep and Sandeep Gedam, were accused in Sessions Trial No.198/2011 pending before the Additional Sessions Judge-9, Nagpur. They filed two applications: one (Exh.239) for issuance of summons to defence witnesses, and another (Exh.240) for recalling certain prosecution witnesses for further cross-examination. The trial court rejected both applications on 05.12.2017 and 07.12.2017. The applicants challenged these orders before the Bombay High Court at Nagpur. The High Court heard arguments from both sides. The applicants' counsel argued that the rejection was erroneous and that allowing the applications was necessary for a just decision. The State opposed, citing a Division Bench decision. The High Court, after considering the submissions and the cited precedents, found that the trial court's orders were not sustainable. The court emphasized the importance of affording the accused a fair opportunity to defend themselves. Consequently, the High Court allowed the criminal application, set aside the impugned orders, and directed the trial court to decide the applications afresh on their own merits, preferably within two months. The court also directed the trial court to expedite the trial and complete it within six months.
Headnote
A) Criminal Procedure - Right to Fair Trial - Recall of Prosecution Witnesses - Sections 311, 233, 243, 309 of Code of Criminal Procedure, 1973 - The trial court rejected the application for recalling prosecution witnesses for further cross-examination. The High Court held that for a just decision of the case, the accused must be given an opportunity to cross-examine witnesses who turned hostile in another trial. The court allowed the application, setting aside the trial court's order. (Paras 2-7)
B) Criminal Procedure - Right to Fair Trial - Summoning of Defence Witnesses - Sections 311, 233, 243, 309 of Code of Criminal Procedure, 1973 - The trial court rejected the application for summoning defence witnesses. The High Court held that the accused must be afforded a proper opportunity to prove their case. The court allowed the application, setting aside the trial court's order. (Paras 2-7)
Issue of Consideration
Whether the trial court erred in rejecting applications for issuance of summons to defence witnesses and for recalling prosecution witnesses for further cross-examination, thereby denying the accused a fair opportunity to defend themselves.
Final Decision
The High Court allowed the criminal application, set aside the impugned orders dated 05.12.2017 and 07.12.2017, and directed the trial court to decide the applications (Exh.239 and Exh.240) afresh on their own merits, preferably within two months. The trial court was also directed to expedite the trial and complete it within six months.
Law Points
- Right to fair trial
- Recall of witnesses for further cross-examination
- Summoning of defence witnesses
- Just decision of the case
- Opportunity to prove defence
Case Details
2018 LawText (BOM) (01) 168
Criminal Application (APL) No.882/2017
Mr. N. T. Gwalbanshi for applicants, Mr. M. K. Pathan, A.P.P. for non applicant-State
Rajdeep s/o Mohan Gedam and Sandeep s/o Mohan Gedam
State of Maharashtra through P.S.O. Kamptee, Nagpur
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Nature of Litigation
Criminal application challenging orders rejecting applications for summoning defence witnesses and recalling prosecution witnesses in a sessions trial.
Remedy Sought
The applicants sought setting aside of the trial court's orders dated 05.12.2017 and 07.12.2017 and direction to allow their applications for issuance of summons to defence witnesses and recall of prosecution witnesses.
Filing Reason
The trial court rejected the applicants' applications for summoning defence witnesses and recalling prosecution witnesses, which the applicants claimed was erroneous and necessary for a just decision.
Previous Decisions
The trial court (Additional Sessions Judge-9, Nagpur) rejected applications Exh.239 and Exh.240 in Sessions Trial No.198/2011 on 05.12.2017 and 07.12.2017.
Issues
Whether the trial court erred in rejecting the application for issuance of summons to defence witnesses (Exh.239).
Whether the trial court erred in rejecting the application for recalling prosecution witnesses for further cross-examination (Exh.240).
Submissions/Arguments
Applicants' counsel argued that the trial court ought to have allowed both applications for a just decision of the case, and that the witnesses sought to be recalled had not supported the prosecution in another trial.
State's counsel argued that rejection of Exh.240 was correct in view of the Division Bench decision in Mohan @ Mohan Baba s/o Janglu Gedam Vs. State of Maharashtra, and opposed the application.
Ratio Decidendi
For a just decision of the case, the accused must be afforded a fair opportunity to defend themselves, including the right to summon defence witnesses and recall prosecution witnesses for further cross-examination. The trial court's rejection of such applications without proper consideration is unsustainable.
Judgment Excerpts
By the present application, the applicants are challenging the orders dated 07.12.2017 and 05.12.2017 passed by the learned Additional Sessions Judge-9, Nagpur below Exhs. 239 and 240 respectively in Sessions Trial No.198/2011 dated 07.12.2017.
He submitted that for just decision of the sessions trial, consideration of these two applications in favour of the applicants is absolutely necessary.
Procedural History
The applicants filed applications Exh.239 (for summoning defence witnesses) and Exh.240 (for recalling prosecution witnesses) in Sessions Trial No.198/2011 pending before the Additional Sessions Judge-9, Nagpur. The trial court rejected both applications on 05.12.2017 and 07.12.2017. The applicants then filed the present criminal application before the Bombay High Court at Nagpur, which was heard and allowed on 30.01.2018.
Acts & Sections
- Code of Criminal Procedure, 1973: 311, 233, 243, 309
