2007 ALL MR (Cri) 761
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R.S. MOHITE, J.
Vijay Madhukar Thorat Vs. State Of Maharashtra
Criminal Application No.504 of 2006
15th February, 2006
Petitioner Counsel: Mr. NITIN SEJPAL , Ms. POOJA BHOJANE
Respondent Counsel: Mr. S. R. SHINDE
Criminal P.C. (1973), S.311 - Recalling of witness - Application for - In absence of advocate for accused, accused asked to cross-examine Investigating Officer - Subsequently on the same day, advocate for the accused making a request for allowing her to cross-examine the witness - Prayer rejected - Held, in the interest of justice, it is desirable that Investigating Officer should be allowed to be cross-examined by the advocate for the accused otherwise a lacuna in the trial will remain - Application for recalling of witness liable to be allowed. (Para 3)
JUDGMENT
2. Rule. By consent, rule made returnable forthwith.
3. In this application the order which is challenged is an order rejecting an application for recall of Investigating Officer for further cross-examination. The record indicates that examination-in-chief of the Investigating Officer was closed on 1-2-2006. It appears that the advocate for the accused was absent and in the circumstances, the accused was asked to cross-examine the witness. He could only be asked two questions. Subsequently on the same day the advocate for the accused made a request for allowing her to cross-examine the witness. This prayer is rejected on the same day and the matter was adjourned for 313 Statement. In my view, in the interest of justice, it is desirable that the Investigating Officer should be allowed to be cross-examined by the advocate for the accused otherwise a lacuna in the trial will remain. In the circumstances, the order rejecting the prayer for recall of the Investigating Officer is set aside. I am informed that the matter is, placed tomorrow. A.P.P. after taking instructions from API. Mr. Shewale present in court states that Mr. Shewale will convey the message to the concerned Investigation Officer to remain present in the court. If the Investigating Officer remains present in the court, the matter to further proceed and thereafter 313 Statement be recorded. In the circumstances, rule is made absolute and the application is disposed off.