YUNUS KARIM BAGWAN AND OTHERSversusTHE STATE OF MAHARASHTRA

2026:BHC-AUG:5741


                                                                 19.Cri.WP-155-2026.odt




                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                               BENCH AT AURANGABAD

                       CRIMINAL WRIT PETITION NO. 155 OF 2026



             1. Yunus Karim Bagwan
             2. Mo. Rafiq Abdul Karim Bagwan
             3. Bilal Yunus Bagwan
             4. Mo. Ali Mo. Rafiq Bagwan
             5. Hasan Yunus Bagwan                               …Petitioners
                             Versus
             State of Maharashtra                                …Respondent



             APPEARANCES :

             Advocate for Petitioners :      Mr. S. J. Salunke
             APP for Respondent/State :      Mr. Aftab Ahmed Khan



                                      CORAM : MEHROZ K. PATHAN, J.

                                      DATE       : 2nd FEBRUARY 2026

            ORAL JUDGMENT :

            1.          The petitioners are challenging the order dated
            01.12.2023 passed by the learned Sessions Judge, below Exh.
            71 and the order dated 05.01.2026 passed below Exh. 125 in
            Sessions Case No. 95 of 2020.


            2.          The learned counsel for the petitioners submits that

                                             Page 1 of 9
                                                19.Cri.WP-155-2026.odt


the petitioners have filed the application below Exh.125 with a
prayer not to refer to the documents filed by the prosecution on
15.3.2023 in the evidence of the witnesses during the trial. The
said application was contested by the prosecution and after detail
hearing, the learned trial court has rejected the application on
the ground that the documents were allowed to be produced on
record vide order dated 1.12.2023 on an application filed by the
prosecution on 15.9.2023. The application with a prayer not to
refer to the documents filed by the prosecution is an attempt to
recall the order dated 1.12.2023 passed by the learned Sessions
Judge and would amount to recalling or reviewing the order,
which is specifically prohibited under Section 362 of Cr.P.C.


3.           The learned counsel for the petitioners submits that
the prosecution has filed an application for production of
documents after filing of charge sheet. The said documents were
not part of the charge sheet and as such, could not have been
allowed by the Sessions Court in view of the judgment of the
Bombay High Court in the matter of Bharat alias Bhomaram
Choudhary vs. State of Maharashtra (2024)DGLS Bom. 4815 and
Wazid Ansari vs. State of Maharashtra reported in (2024)All M.R.
Cri. 3512.


4.           The learned counsel for the petitioners submits that
perusal of the provisions of Cr.P.C. and the entire scheme
contemplated therein demonstrates that there is no provision
available for the prosecution to produce documents which were
not part of the charge sheet. Any such attempt on behalf of the

                              Page 2 of 9
                                                     19.Cri.WP-155-2026.odt


prosecution had to be in furtherance of the investigation carried
out under Section 173(8) of the Cr.P.C. in which some new
evidence is collected by the prosecution. The documents which
are sought to be relied upon by the prosecution are medical
certificates of the injured witnesses, which were not part of the
charge sheet and thus, ought not to have been referred by the
prosecution to its witnesses and the same is specifically
prohibited in view of the aforesaid two pronouncements of the
Bombay High Court in the matters of Bharat Chaudhari and
Wazid Ansari, cited supra. The learned counsel, therefore, prays
for setting aside the order dated 1.12.2023 passed below Exh.71
and subsequent order dated 5.1.2026 below Exh.125, passed by
the learned Sessions Court, in Sessions Trial No. 95 of 2020.


5.         I have gone through the order dated 1.12.2023 and
the order dated 05.1.2026 and the charge-sheet filed by the
prosecution. Perusal of the order dated 1.12.2023 passed by the
learned Sessions Judge, below Exh.71 would show that the said
order was passed on an application filed by the prosecution. The
said application was allowed after calling for the say of the
accused. The accused have filed their say on 15.9.2023 on the
said application. Thus, after considering the documents sought
to be placed on record and the charge sheet filed by the
prosecution the trial court, vide order dated 1.12.2023 had
allowed   the   said   application     below     Exh.71    allowing     the
prosecution to produce documents which are nothing but medical
papers of the injured witnesses.             Perusal of the application
Exh.71 filed by the prosecution shows that witnesses were

                               Page 3 of 9
                                                    19.Cri.WP-155-2026.odt


admitted in the hospital for further treatment, however, till filing
of the charge sheet, the medical papers were not available and
hence, the medical papers could not be filed alongwith the
charge sheet.    Taking into consideration the aforesaid reasons
stated in the application, the said application came to be allowed
vide earlier order dated 1.12.2023 with a specific observation
that evidence is yet to commence.


6.           The petitioners have suffered the aforesaid order
dated 1.12.2023 and did not challenge the said order before the
appropriate forum by taking appropriate steps, however, after
the said order came to be passed on 1.12.2023, the trial has
proceeded and the witnesses are also examined. The petitioners
have thereafter filed the present application Exh.125 for not
allowing the prosecution to refer the witnesses the documents
which were allowed to be brought on record vide order dated
01.12.2023. Perusal of the second impugned order dated
5.1.2026 passed below Exh.125 filed by the petitioners shows
that   the   offence   was   committed       on   18.6.2020     and    the
prosecution witness No.1 was already examined, wherein, he has
stated in his deposition that he was referred to Navandar
Hospital Parbhani and then to Santapur Hospital, Aurangabad.
Another injured witness Sachin Aher was treated at Dagdu
Hospital, Manwat and then referred to Nanded for further
treatment. It is further revealed that the charge sheet came to
be filed in the said crime on 11.9.2020, however, at that time,
the Investigating Officer did not file the document i.e. medical
treatment papers as the same were not available at the time of

                               Page 4 of 9
                                                               19.Cri.WP-155-2026.odt


filing the charge sheet. The application below Exh.71 was also
filed by the prosecution and not by any witness or the victim and
as such, the ratio of the                   judgment relied upon by the
accused/petitioners herein in the case of Bharat Chaudhari
(supra) would not apply. In the case of Bharat Chaudhari supra,
the Single Judge of the Bombay High Court was pleased to
observe as under :-
    33. This brings me to the irregular role of the Public Prosecutor in the
    present case. The application dated 19.04.2024 filed by the Public
    Prosecutor states that the victim had handed over the documents to be
    produced in the Court as evidence. This statement itself points to the
    partisan role being played by a Public Prosecutor. As emphasized in the
    judgments referred to above, the Public Prosecutor acts beyond his role and
    appointment under Section 24 of the Code, if he attempts to produce
    documents or evidence on behalf of a witness, and beyond the documents
    accompanying the charge sheet. He cannot take the role of an Investigator
    or even inquire into the evidentiary value of such documents and has to
    play a non-partisan role during the prosecution of a case. The role of the
    Public Prosecutor is to base the entire trial upon the documents relied upon
    in the Final Report and to assist the Criminal Court at arriving upon a
    decision based on this material and none else.
    . In the present case, the Public Prosecutor, by application dated
    19.04.2024 records that the victim has handed over the documents and that
    the same are very material and necessary to meet the ends of justice. How
    the Prosecutor came to this conclusion, whether on his own investigation or
    otherwise, defies all logic. This can certainly not be the role of a Public
    Prosecutor as in the present case, by the very averments in the application,
    he has taken up a partisan role in favour of the witness/victim. The
    application is, therefore, clearly not maintainable and certainly not in terms
    of Section 91 or Section 231 of the Code. The application necessarily has to
    be held to be beyond the powers vested in a Public Prosecutor to move such
    an application, and is not maintainable. This course of action has been
    taken by me in exercise of the supervisory jurisdiction under Article 227 of
    the Constitution of India vested in me, in addition to the inherent powers
    exercised under Section 482 of the Code, to correct a gross injustice which
    may be caused to the accused if such an application were allowed or even
    dealt with.



                                       Page 5 of 9
                                                    19.Cri.WP-155-2026.odt


7.           Thus, in the aforesaid reported case of Bharat
Chaudhari relied upon by the accused, it can be seen that the
documents were handed over by the victim by the prosecution,
who had then filed an application for producing the documents
on record. Same is not the case in the present petition. Here,
the   prosecution    itself   has     filed   an   application     before
commencement of the evidence by the witnesses way back in the
year 2023 and the learned trial court has allowed the said
application on 1.12.2023 taking into consideration the reasons
stated in the said application and also recording the reasons that
evidence is yet to commence. The reliance upon the said
judgment in the case of Bharat Chaudhari by the petitioners
herein, is misconceived.



8.           Another judgment relied upon by the petitioners is in
the case of Wazid Ansari Vs. State reported in (2024) All M.R.
Cri. 3512.    It can be seen that the prosecution had filed an
application thereby permitting the victim to rely upon certain
photographs alongwith certificate under Section 65-B of the
Evidence Act on the ground that no prejudice is going to be
caused to the accused or the victim. Thus, it can be seen that
the facts of the aforesaid case reveals that the prosecution has
filed an application for production of aforesaid documents i.e.
photographs and certificate under Section 65-B permitting the
victim to rely upon the photographs and specific averment was
made by the prosecution that the certificates were not available
with the victim at the relevant time, but, subsequently the victim


                               Page 6 of 9
                                                 19.Cri.WP-155-2026.odt


managed to locate the photographs from her i-cloud backup and
accordingly, she desired to produce the said photographs while in
the witness box.   Thus, in the backdrop of the aforesaid facts,
the Single Bench of the Bombay High Court at Goa, was pleased
to reject the said application for production at the behest of the
victim.


9.         Insofar as the facts in the present petition are
concerned, it can very well be seen that the prosecution itself
has moved an application for production of medical certificates
on record of the injured witnesses and the victim on record on
the ground that the said certificates were not available at the
time of filing of charge sheet. The said application came to be
allowed way back in the year 2023.         The petitioners failed to
challenge the order dated 1.12.2023 by taking appropriate steps
thereby allowing the trial to proceed. The trial has already
commenced and the prosecution has examined the prosecution
witness NO.1. It is thereafter that the petitioners have chosen to
file an application below Exh.125 with a prayer not to allow the
prosecution to refer to the documents, which were already
allowed to be brought on record vide earlier order dated
1.12.2023. the petition is nothing but an attempt on behalf of
the accused to circumvent the order dated 1.12.2023 which has
attained finality and as such, I do not find any substance and
merit in the arguments of the petitioners herein.


10.        The learned Singe Judge of this court in the matter of
Niwas Keshav Raut vs. State of Maharashtra, reported in 2019 All

                             Page 7 of 9
                                                                 19.Cri.WP-155-2026.odt


M.R. Cri. 3742 relying upon the Division Bench judgment in the
case of State of Maharashtra Vs. Ajay Dayaram Gopnarayan &
Anr., reported in 2014 All M.R. Cri. 2141, has observed as
under :
  10. Thus, the Division Bench is of the opinion that what Section 294 does is to
  regulate the procedure of filing of a document before the Court and the treatment
  that it must receive from the Court.
  11. The significant aspect of Section 294 Cr.P.C., one must note, is that it no where
  places any embargo upon the prosecution or accused to file a document at a stage
  subsequent to filing of the charge-sheet. It only says that if any document is sought
  to be produced before the Court, it should be included in the list of the documents
  and then the other side should be called upon to either admit or deny the
  genuineness of the document. It means by necessary implication that a document
  can be filed subsequent to filing of charge-sheet subject to following the procedure
  prescribed in Section 294. Then, it is not necessary for the accused, who is called
  upon to admit or deny the document, to choose either of these options and he may
  simply keep silence in respect of the document which may as well be an expression
  of his fundamental right under Article 20(3) of the Constitution of India which
  says that no person accused of any offence shall be compelled to be a witness
  against himself. In case the accused chooses to deny the document or just remains
  silent in that regard, the document cannot be admitted in evidence and it would be
  required to be proved in accordance with law, having regard to the right of the
  accused under Article 20(3) of the Constitution of India. However, when the
  prosecution, which is called upon by the accused, to admit or deny the document,
  does neither of the things and chooses to stay put with the document, a different
  situation would arise. In such a case, perspective of the right would change from
  that of fundamental to procedural, for, Article 20(3) is available to only those
  persons who are accused of any offence and not to those who allege commission
  of offence by others. Therefore, a criminal Court would have to meet silence of the
  prosecution in respect of a document in a different way, depending on the nature
  and contents of the document and the law of proof of documents applicable to the
  fact situation. In other words, facts of each case would trigger the effect of
  prosecution silence under Section 294 of Code of Criminal Procedure. Having
  analysed Section 294, Cr.P.C., so, let us now examine the impugned order for its
  congruence to law or otherwise.


11.           In the aforesaid background, in the present case also
while allowing the application below Exh. 71 dated 1.12.2023,
there is a specific observation made by the learned Sessions
Court that the evidence has not commenced and as such, the


                                        Page 8 of 9
                                                     19.Cri.WP-155-2026.odt


application for production of documents filed by the prosecution
is allowed.


12.           On perusal of the impugned order, I find that the
afore-stated requirements of law have been followed by the
learned Sessions Judge. He has considered the fact that as
evidence has not begun there would be no question of causing of
any prejudice to accused, and rightly so. He has observed that so
far as the proof and effect of the document is concerned, same
would have to be gone into at an appropriate stage, which again
cannot be said to be a view standing opposite to law. Therefore, I
find neither any illegality nor arbitrariness in the impugned order.
There is no merit in the present writ petition and it deserves to
be dismissed.



13.           Thus, the petitioners have failed to make out a case
for interference in the extraordinary jurisdiction of this Court, in
the orders dated 1.12.2023 and 5.1.2026 passed by the learned
Sessions      Judge.,   Parbhani,   below     Exhibits   71    and     125,
respectively, in Sessions Trial No. 95 of 2020.          The petition is,
therefore, devoid of substance and is hereby dismissed.




                                     [ MEHROZ K. PATHAN ]
                                           JUDGE




Najeeb..


                                Page 9 of 9