Research › Search › Judgment

Gujarat High Court · body

2015 DIGILAW 432 (GUJ)

Rajeshkumar Babulal Patel v. State of Gujarat

2015-04-15

N.V.ANJARIA

body2015
JUDGMENT : N.V. Anjaria, J. 1. The applicant-original accused has filed the present Revision Application against order dated 15-4-2014 passed by learned Additional Sessions Judge, Court No. 7; City Civil and Sessions Court, Ahmedabad, whereby the Court allowed application below Exh. 196 filed by the prosecution under Sec. 311 of the Code of Criminal Procedure, 1973 for summoning of certain witnesses. It appears that First Information Report being C.R. No. I 365 of 2008 came to be registered on 9-12-2008 before the Shahibaug Police Station against the applicant and another person for the alleged offence punishable under Sees. 365 and 114 of the Indian Penal Code, 1860. The Investigating Agency after investigation, submitted charge-sheet for the offence punishable under Sees. 302, 307, 364B, 365, 342, 120B and 201, I.P.C. The charge came to be framed against the present applicant and other accused on 20-1-2012 at Exh. 40. It was stated that while the applicant herein was released on bail, other accused being original accused No. 1 is an undertrial prisoner. 2. In the proceedings of Sessions Case No. 262 of 2009 registered against the applicant, on 4-3-2014, the prosecution filed an application Exh. 196 under Sec. 311, Cr.P.C. praying that it wanted to examine certain witnesses. Seven persons were named as witnesses whom the prosecution wanted to call for examination. It was the case of the prosecution that those witnesses were not mentioned in the charge-sheet, but they were necessary to be examined. At the time when said application was filed, 48 witnesses were examined. 3. Learned Advocate Mr. Hardik A. Dave for the applicant submitted that examination of none of the witnesses named was necessary for a just decision of the case. It was submitted that the witnesses sought to be examined as panch witnesses was a futile request inasmuch as panchnama was exhibited and other panchas were examined. It was submitted that in respect of one of the witnesses proposed to be called for examination, earlier application is already pending. It was submitted that the entire application was abuse of process of law and suffered from non-application of mind. Learned Advocate highlighted the attendant details about each of the witnesses named for examination which were highlighted in the pleadings: "(i) The first witness, prosecution wanting to examine, is one Shri Hardikbhai Rameshchandra Kadia. It was submitted that the entire application was abuse of process of law and suffered from non-application of mind. Learned Advocate highlighted the attendant details about each of the witnesses named for examination which were highlighted in the pleadings: "(i) The first witness, prosecution wanting to examine, is one Shri Hardikbhai Rameshchandra Kadia. Applicant states that said witness is Photographer and Videographer, who had done videography of the scene of offence panchnama drawn at the instance of original accused No. 1. The panchnama of scene of offence is already exhibited at Exh. 107. Panch witnesses of said was also examined at Exh. 106 and Exh. 108. Another scene of offence panchnama drawn at the instance of first informant is also exhibited at Exh. 68 at the time of deposition of panch (Exh. 67). (ii) Second witness-Shri Laxmanbhai Kalubhai is mentioned as panch witness in the application, but there is no such panch witness. (iii) Third witness-Jayendrasinh who is shown as panch witness in the application, in whose respect application (Exh. 89) for the purpose of examining said witness, is already pending and without pressing said. (iv) Fourth and fifth witnesses, prosecution wanted, are Shri Ajaysinh Keshaji Thakor and Shri Pratik Sajankumar Goyenka narrated as panch witnesses in the application. These witnesses are panch witnesses of the panchnama drawn by the Shahibaug Police Station for mudddamal which was recovered by the Mansa Police Station, is already exhibited. (v) Sixth witness which prosecution proposed to be examined is one Jitendra Dilipbhai Makwana who by subsequent endorsement, is dropped. (vi) Laxmanbhai Kalubhai who is shown as A.S.I, in the application is formal witness and has collected medical samples for the purpose of examination. Applicant states that it is required to be noted that said witness is also shown at Sr. No. 2 of the application as panch witness. (vii) Witness Nos. 8 and 9 are hearsay witnesses and they in their respective statements, stated that they came to know about the incident from Chokidar who was examined vide Exh. 70." 3.1. Learned Advocate for the applicant submitted that in light of the above facts, there was no merit in the above prayer. He submitted that it is well settled that the powers under Sec. 311, Cr.P.C. would be exercised to call witness/s for examination or re-examination, provided it is necessary for a just decision of the case. 70." 3.1. Learned Advocate for the applicant submitted that in light of the above facts, there was no merit in the above prayer. He submitted that it is well settled that the powers under Sec. 311, Cr.P.C. would be exercised to call witness/s for examination or re-examination, provided it is necessary for a just decision of the case. It was submitted that this basic ingredient was not shown to have been satisfied, therefore, the impugned order lacked legality and propriety. 3.2. On the other hand, learned Additional Public Prosecutor Mr. K.P. Raval submitted that the witnesses were found to be necessary to be examined, though they were not mentioned in the charge-sheet. He submitted that some of the witnesses were panch witnesses and required to be examined. It was further submitted that the case was based on circumstantial evidence. Learned A.P.P. further submitted that no prejudice would be caused to the other side since it would have an opportunity to cross-examine those witnesses. Learned A.P.P. submitted that the powers of the Court under Sec. 311, Cr.P.C. are wide and the Court has rightly exercised discretion allowing the application of the prosecution. Learned A.P.P. emphasized that the examination of all the witnesses is necessary for arriving at a just decision in the case which is an underlying object of the provisions of Sec. 311, Cr.P.C. 4. The Apex Court in Hanuman Ram v. State of Rajasthan, 2008 (15) SCC 652 , examining the nature and extent of powers vested in the Court under Sec.311, Cr.P.C. observed and held that the object was to prevent failure of justice on account of mistake of either party to bring on record valuable evidence or leaving an ambiguity in the statements of witnesses. It was observed: "The determinative factor is whether it is essential to the just decision of the case. The Section is not limited only for the benefit of the accused, and it will not be an improper exercise of powers of the Court to summon a witness under the Section merely because the evidence supports the case of the prosecution and not that of the accused. The Section is a general Section which applies to all proceedings, enquiries and trials under the Code and empowers the Magistrate to issue to any witness at any stage of such proceedings, trial or enquiry. The Section is a general Section which applies to all proceedings, enquiries and trials under the Code and empowers the Magistrate to issue to any witness at any stage of such proceedings, trial or enquiry. In Sec. 311 the significant expression that occurs is "at any stage of any inquiry or trial or other proceedings under this Code." It is, however, to be borne in mind that whereas the Section confers a very wide power on the Court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind." 4.1. In a more recent decision in Rajaram Prasad Yadav v. State of Bihar, 2013 (14) SCC 461 , the nature and scope of powers of the Court under the said provisions has been explaining and enumerated in detail and it was held that such powers can be exercised at any stage, but the paramount consideration should always be of just decision of the case. 5. Therefore, the centripetal consideration for exercise of powers for calling or recalling of the witnesses at any stage of the trial, is that the same is to help the Court to reach a just decision in the case. In order that the Court is able to come to a conclusion that witness proposed to be examined or re-examined is necessary to be examined or re-examined for the purpose of reaching a just decision in the case, the applicant making such application before the Court is required to spell out in its application the relevance of the witness's evidence needed to be adduced by calling him or re-calling him for examination. The pleadings has to contain the related facts, though may be broadly yet, precisely indicating the reason and context in which the witness is called for. In an application made under Sec. 311, Cr.P.C. unless the facts, pleadings and averments meet with those essential requirements, it may not be possible to judge the prayer in right perspective. 5.1. Measured by above yardstick, in the facts and circumstances of the case, the application made by the prosecution, was with inadequate, if not cryptic, pleadings as regards role and relevance of each of the witnesses proposed to be called for examination. The application appears to have been made in cursory way, at least in that regard. 5.1. Measured by above yardstick, in the facts and circumstances of the case, the application made by the prosecution, was with inadequate, if not cryptic, pleadings as regards role and relevance of each of the witnesses proposed to be called for examination. The application appears to have been made in cursory way, at least in that regard. Witness No. 6 was dropped stating in the endorsement below the application that the applicant was not willing to examine him. In any view, the application could not be said to be revealing relevant facts attendant to each witness because of which prosecution wanted to call him for examination. The pleadings in the application of the prosecution was laconic in terms of requisite facts and aspects so as to bring out necessary ingredient that the examination of the said witnesses was necessary for a just decision in the case, the prosecution ought to have spelt out the relevant details in the above context with regard to each of the witnesses. 6. In the aforesaid view, the impugned order is quashed, however, with a liberty to the applicant that it would be open for the prosecution to file another similar application with necessary details, pleadings and averments justifying the prayer. Such application shall be made, if advised, within period of 3 (three) weeks from today. If the application as above is made, the learned Judge shall consider and decide the same on its merits and in accordance with law. In considering the application which may be filed by the prosecution afresh, the Court shall decide the same within a period of 6 (six) weeks from the date of the application which may be made by the prosecution pursuant to this order, without being influenced by this order or by earlier order impugned in the petition. This Court has not gone into merits of the case and this order is not in any way reflective of merits of the case of either side in relation to the prayer in question. Rule is made absolute.