Narayan G. Gadekar vs State

Reis F.M., J.—Heard Shri S. Shet, learned Counsel appearing for the petitioner and Shri Mahesh Amonkar, learned Counsel appearing for the respondent. Rule. Heard forthwith with the consent of the learned Counsel. Learned Addl. Public Prosecutor appearing for the respondent, waives service.

The above petition challenges an Order dated 2.7.2012 passed by the learned J.M.F.C., at Pernem, in Criminal Case No. 76/S/2010, whereby an application filed u/s 311 of the Cri.P.C., came to dismissed.

It is the contention of the learned Counsel appearing for the petitioner that on account of inadvertence of the Advocate, who was appearing on behalf of the petitioners, some contradictions which had to be put to two witnesses namely PW. 2, Usha Gadekar and PW. 5, Dattaram Raut, were not put to such witnesses. Learned Counsel further pointed out that without putting such contradictions, the case of the petitioners would be gravely jeopardised. Learned Counsel further pointed out that the learned Judge has dismissed the application only on the ground that the said Advocate was appearing for the petitioners since the trial started. Learned Counsel has taken me through the impugned order and pointed out that the learned Judge was not justified to pass the impugned order.

On the other hand, Shri Mahesh Amonkar, learned Addl. Public Prosecutor appearing on behalf of the respondent, points out that he submits to the order of this Court.

I have considered the submissions of the learned Counsel and I have also gone through the records. It is pointed out by the learned Counsel that the same Advocate who was appearing on behalf of the petitioners had filed the said application u/s 311 of the Cr.P.C. In such circumstances, the allegations made in the application are deemed to have been accepted by the said Advocate. Considering that the Advocate has accepted his inadvertence in not putting the contradictions to the said witnesses, I find it appropriate, in the interest of justice, to direct the recall of the witnesses namely PW. 2, Usha Gadekar and PW. 5, Dattaram Raut for further cross-examination. No doubt, such exercise would be at the costs of the petitioners.

In view of the above, the impugned Order dated 2.7.2012 passed in Criminal Case No. 76/S/2010, is quashed and set aside. The petitioners are permitted to further cross-examine PW. 2, Usha Gadekar and PW. 5, Dattaram Raut, as prayed for at the costs of the petitioners, in accordance with law. Petition stands disposed of accordingly.