DEVESH DASHARATH MALVANKAR Vs. SHRIPAD SHANKAR KERKAR

JUDGEMENT

(1.) Heard the Learned Counsel appearing for the Petitioner.

(2.) Rule. Mr. Pednekar, the Learned Counsel appearing for the 1st Respondent, waives service and the Learned Additional Public Prosecutor waives service on behalf of the 2nd Respondent. The Rule is made returnable forthwith and heard finally by consent of the parties. On 26/2/2026, Mr. Shivan Desai was appointed as an Amicus Curiae to assist in the matter, considering the question of law argued on behalf of the 1st Respondent. Heard Mr. Desai, the Learned Amicus Curiae.

(3.) By the present Petition, the Petitioner challenges the order dtd. 22/9/2025 passed by the Learned Judicial Magistrate First Class, Pernem, Goa (impugned order). The Learned Magistrate was pleased to dismiss the Application of the Petitioner filed under Ss. 348 and 353 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). The Petitioner, by the Application under Ss. 348 and 353 of the BNSS sought to re-open the defence evidence. The ground mentioned in the Application is that the matter was fixed for defence evidence on 4/6/2025 and on 7/7/2025. On both days, the matter could not be taken up due to a lack of time, and it was adjourned accordingly. It is submitted that on the next occasion, the Petitioner was unable to remain present in Court due to unavoidable personal circumstances, and therefore, could not examine the defence witness. It is the case of the Petitioner that the closure of defence evidence was neither deliberate nor intentional. The Petitioner has always been willing to cooperate in the proceedings. By pleading the provisions of Article 21 of the Constitution of India, the Petitioner submitted that the denial of opportunity to examine the defence witness will result in grave prejudice to the Petitioner and therefore would violate the fundamental right to fair trial. It is submitted on behalf of the Petitioner that the Petitioner wishes to examine four more witnesses and also desires to produce one important document, which, according to the Petitioner, is relevant for the adjudication of the case.