Writ Petition No. 237 of 2015. Case: The State of Maharashtra Vs Narendra G. Goel and Ors.. High Court of Bombay (India)
| Case Number | Writ Petition No. 237 of 2015 |
| Counsel | For Appellant: Raja B. Thakare, Special Public Prosecutor and For Respondents: Amit Jajoo, Mukesh Vats and Victor Basu i/b PKA Advocates |
| Judges | V. M. Kanade and Revati Mohite Dere, JJ. |
| Issue | Code of Criminal Procedure, 1973 (CrPC) - Sections 200, 202, 207, 209, 228, 306, 306(4), 306(4)(a); Indian Evidence Act, 1872 - Section 138; Indian Penal Code 1860, (IPC) - Sections 120B, 302, 32, 34, 397, 452 |
| Judgement Date | April 18, 2016 |
| Court | High Court of Bombay (India) |
Judgment:
Revati Mohite Dere, J.
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The short question which arises for consideration in this petition is:-
'Whether an accused has a right to cross examine the approver, who is examined under Section 306(4) of the Code of Criminal Procedure by the Magistrate, at the pre-committal stage?'
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At the outset, we may note, that by a separate order, we have dismissed Criminal Writ Petition No. 3919 of 2014, preferred by the respondent no.1 herein, challenging (i) the order dated 10th January, 2006, passed by the learned Additional Metropolitan Magistrate, 37th Court, Esplanade, Mumbai in C.C. No.525/PW/2005, granting pardon to Pradeep Parab and (ii) the order dated 22nd September, 2014, dismissing the petitioner's application seeking compliance of the order dated 15th February, 2013, passed by the High Court in Writ Petition No. 1309 of 2012.
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Few facts as are germane for deciding the present petition are as follows;
On 23rd August, 2003 Dr.Asha Goel, a Canadian National of Indian origin was found murdered in a flat belonging to her brother -Suresh Agarwal, at Malabar Hill, Mumbai. Pursuant thereto, at the behest of Suresh Agarwal, the brother of the deceased, the Malabar Hill Police Station, registered C.R. No.93 of 2003 against unknown persons, alleging offences punishable under Sections 302, 397, 452 r/w 34 and 120B of the Indian Penal Code. As there was no progress in the investigation, the case was transferred to the DCB, CID, Unit -II, Mumbai. Thereafter, accused came to be arrested and on completion of the investigation, charge-sheet came to be filed. Before the case was committed to the Court of Sessions, original accused no.1 i.e. respondent no.3 herein gave his confession, which was recorded by the learned Metropolitan Magistrate on 26th and 27th September, 2005. On 28th December, 2005, cognizance was taken and process was issued against the accused persons, copies were supplied under Section 207 of Code of Criminal Procedure and the matter was adjourned for committal of the case under Section 209 of the Code of Criminal Procedure. On 9th January, 2006 the prosecution preferred an application under Section 306 of the Cr.PC for grant of tender of pardon to respondent no.3 -Pradeep Parab. On 10th January, 2006, the learned Metropolitan Magistrate, accepted the tender of pardon on the ground, that respondent no.3 makes full and true disclosure of the whole of the circumstances within his knowledge, relating to the offence and with regard to every person concerned with the same. Thereafter, the case was committed to the Court of Sessions, and numbered as Sessions Case No. 100 of 2006.
When the case came up before the learned Sessions Judge, for framing of charge, the Respondent No. 1 preferred an application seeking his discharge from the said case. The learned Sessions Judge rejected the said application vide order dated 29th February, 2012. Aggrieved by the said order rejecting his application for discharge, the respondent no.1 preferred Criminal Writ Petition No. 1309 of 2012, in this Court. When the said petition came up before the learned Single Judge of this Court, it was contended by the learned counsel for respondent no.1 that the provisions of Section 306(4)(a) were not complied with. It appears that the Special Public Prosecutor appearing for the State sought time, to examine the grievance made by the counsel for the respondent no.1, as to whether there was compliance with the provisions of Section 306(4)(a) or not, and accordingly the matter was adjourned by three weeks. Realising that the respondent no.3 was not examined as a witness before the learned Magistrate, as contemplated under Section 306(4)(a) of Code of Criminal Procedure, the prosecution preferred an application before the learned Sessions Judge, seeking to rectify the said defect. The learned Sessions Judge was pleased to reject the said application, vide order 21st June, 2012, pursuant to which, the said order was challenged by the State in this Court, in Criminal Writ Petition No. 2421 of 2012. Both, the Writ Petition preferred by the State as well as the Writ Petition preferred by the respondent no.1, came up before the learned Single Judge of this Court. The learned Single...
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