Aslam Fakir Mohd. Khan vs. State Of Maharashtra

Nikita

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

WRIT PETITION NO.3640 OF 2022

Aslam Fakir Mohd. Khan and Anr. … Petitioners V/s. State of Maharashtra and Anr. … Respondents

Ms. Bushra Sayed i/b Mr. Md. Moin Khan for the Petitioners. Mr. Arfan Sait, APP for the State. PSI Mr. Vijay Warik, V. B. Nagar, Police Station. Mr. S.P Mujumdar, Medical Officer, Present in person.

CORAM : AMIT BORKAR, J.

DATED : MARCH 20, 2023

P.C.:

1. The order impugned rejects application under Section 311 filed by the accused. The petitioner has been prosecuted for offences punishable under Sections 323, 525, 504, 427, and 34 of Indian Penal code, 1860.

2. The prosecution was initiated in the year 2008. PW-1 was examined on 18th November 2016 and his cross-examination was completed on 21st January 2017. PW-2 was examined on 9th February 2018. Investigating Officer's evidence was recorded on 24th June 2019.

3. The examination-in-chief of Dr. S.P Mujumdar (PW-4) was

recorded on 29th August 2019. The application seeking defferment of cross-examination was rejected by order dated 17th September 2019. The accused filed an application for recalling of witness (Dr. S.P. Mujumdar) which was allowed. On 1st March 2021, Dr. S.P. Mujumdar was present. The accused did not conduct her crossexamination. The accused again applied for recalling of Dr. Mujumdar which was allowed but the accused No.2 did not crossexamined.

4. The Magistrate in the impugned order has recorded a finding that Dr. Mujumdar went back three times without being crossexamined. There is no challenge to this finding in this petition. The Magistrate, therefore, by the impugned order rejected the application of accused stating that Dr. Mujumdar is a Medical Officer performing public duty and, therefore, it is not proper to call her in the Court repetitively by wasting her precious time rendering service as Medical Officer.

5. The reason in the application was death of father of the accused, however, the Magistrate rejected the explanation holding that for cross-examination of witness the presence of Advocate is required, not the presence of accused. The Magistrate emphasized on the fact that the Medical Officer was required to remain present three times and, therefore, chose not to allow such application.

6. In my opinion, no fault can be found with the reasoning adopted by the Magistrate. The earlier opportunities granted to the accused by allowing application for recall have not been used by the accused to conduct cross-examination. The order impugned

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cannot be termed as perverse.

7. The writ petition is, therefore, dismissed. No Costs.

(AMIT BORKAR, J.)