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2016 DIGILAW 1670 (GUJ)

RAMESHBHAI CHANDUBHAI VASAVA v. STATE OF GUJARAT

2016-08-05

S.G.SHAH

body2016
JUDGMENT : S.G. SHAH, J. 1. Rule. Learned advocate Mr. Pravin Gondaliya waives service of notice of rule for respondent Nos. 2 and 3. Learned APP Mr. Manan Mehta waives service of notice of rule for respondent – State. 2. Heard learned advocate Mr. Anvesh V. Vyas for the petitioner, learned advocate Mr. Pravin Gondaliya for respondent Nos.2 and 3 and learned APP Mr. Manan Mehta for respondent No.1. Perused the record. 3. The petitioner herein is original complainant whereas respondent Nos. 2 and 3 are original accused, who are facing charges under Section 302 and 214 as well as 114 of the Indian penal Code read with Section 3(2)(5) of the Atrocities Act, pursuant to Waghodiya Police Station I - C.R. No. 93 of 2013. After investigation, the investigating agency has submitted a charge sheet and thereby accused are being tried in Atrocity Case No. 37 of 2013 for the above offences. Pending trial, one of the witnesses namely Rameshbhai Chandubhai Vasava being original complainant has filed an application at exhibit 87 under Section 311 of the Code of Criminal Procedure for recalling officers of the Airtel and Uninor, who were already examined on record to prove the call details of the SIM Card being used during commission of offence by the accused. When such application was allowed, by an order dated 13.04.2016, the Sessions Judge has ordered that application is partly allowed and, thereby summons was ordered to be issued to call upon the concerned person from the Telenor/Uninor company for adducing evidence, so far as Mobile No.7383959770 and 9998573371 are concerned. Pursuant to such summons, witnesses were examined. However, it has been noted that mobile number disclosed in the order is incorrect and, therefore, petitioner – complainant has filed one another application at exhibit 98 for correcting the mobile number in order below exhibit 87 and thereby at the end of the application in para 3, correct mobile number is now disclosed i.e. 9998664711 so also 9909347117. While dealing with such application the Sessions Court has allowed it by an order dated 16.05.2016. It was allowed for correcting information of one mobile number from 9998573371 to 9909347177 and that in order below exhibit 87 in para 3 there is a reference of both the service providers, now it has been restricted to one service provider only. While dealing with such application the Sessions Court has allowed it by an order dated 16.05.2016. It was allowed for correcting information of one mobile number from 9998573371 to 9909347177 and that in order below exhibit 87 in para 3 there is a reference of both the service providers, now it has been restricted to one service provider only. 3.1 Petitioner has, therefore, challenged both the orders dated 13.04.2016 below exhibit 87 and order dated 16.05.2016 below exhibit 98 in Sessions Case No. 8 of 2015 (old No. 37 of 2013) and prayed to recall the material witnesses under Section 311 of the Code of Criminal Procedure. 4. I have heard both the learned advocates and perused the record. The record includes deposition so also police statement and call record in a tabular form which is by and large documents produced by the prosecution before the trial Court with list at exhibit 8. The perusal of record prima facie makes it clear that there is bona fide mistake on the part of the applicant, so also by the trial Court in disclosing the relevant number for which, witness is to be called and, therefore, when there is an application to recall the witness by disclosing correct number, practically, there cannot be any hue and cry or objections, more particularly, considering the wide powers of the Court pursuant to provisions of Section 311 of the Code of Criminal Procedure, which reads as under: “311. Power to summon material witness, or examine person present Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and reexamine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case.” 4.1 The bare perusal of section makes it clear that the Court may at any stage of any inquiry, trial or other proceeding under the Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and reexamine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to arrive at just decision of the case. Therefore, basically the Court has got ample and wide powers to call upon any person, if necessary by summons if he is not in attendance in person and Court shall call or examine or recall or re-examine any such person if his deposition appears to be necessary for deciding any matter, irrespective of objections of either side. So far as calling the witness is concerned, even stage of trial is not much material because the section specifically confirms that Court may at any stage issue summons. It is also settled legal position that, if the conditions under this section are specific i.e. if Court thinks it fit that evidence of any person is essential to do the best justice of the case, then the Court can call upon the witness not only on the motion of either side but also can do so on its own motion. 5. The perusal of deposition of PW No.16 at exhibit 78 namely Mahendrakumar Amlani, Nodal Officer of Airtel so also PW No. 17 at exhibit 84 namely Atmaprasad Shrivastav, Nodal Officer, Vodaphone, makes it clear that they have nothing to add except to confirm the call record of particular sim-card number. 5. The perusal of deposition of PW No.16 at exhibit 78 namely Mahendrakumar Amlani, Nodal Officer of Airtel so also PW No. 17 at exhibit 84 namely Atmaprasad Shrivastav, Nodal Officer, Vodaphone, makes it clear that they have nothing to add except to confirm the call record of particular sim-card number. Therefore, if at all, for any reason whatsoever, when there is a disclosure of improper or wrong mobile number during process of serving witness summon and recording evidence of these two witnesses and, thereafter, on noticing such error calling upon such witness to prove the call details of correct and concerned mobile number, which was alleged to have been used during commission of offence, then there is no reason whatsoever to refuse to grant such relief. 6. Whereas, it is submitted before this Court as it is pleaded before the Sessions Court that such application is filed only with a view to fill up the lacuna by examining the witness, who are already examined and, therefore, nobody should be allowed to fill up the lacuna in its evidence. However, there is no substance in such submission. For the purpose, reference to the grounds and pleadings in revision memo needs to be referred, as there is substance in such grounds, when; Learned advocate for the petitioner has submitted that; (1) The trial Court has failed to appreciate the evidences adduced by the applicant; (2) Learned advocate for the petitioner has submitted that the trial Court has failed to consider the important aspects of Section 311 of the Code of Criminal Procedure. (3) Learned advocate for the petitioner has submitted that a conspicuous reading of Section 311 of the Code of Criminal Procedure would show that wide powers have been invested with the Courts when it comes to the question of summoning a witness or to recall or re-examine any witness already examined. A reading of the provision shows that the expression “any” has been used as a pre-fix to “court”, “inquiry”, “trial”, “other proceeding”, “person as a witness”, “person in attendance though not summoned as a witness” and “person already examined”. A reading of the provision shows that the expression “any” has been used as a pre-fix to “court”, “inquiry”, “trial”, “other proceeding”, “person as a witness”, “person in attendance though not summoned as a witness” and “person already examined”. By using the said expression “any” as a pre-fix to the various expressions mentioned above, it is ultimately stated that all that was required to be satisfied by the Court was only in relation to such evidence that appears to the Court to be essential for the just decision of the case. Section 138 of the Evidence Act, prescribed the order of examination and also purports calling for such a witness so desired for such re-examination. Therefore, a reading of Section 311 of the Code of Criminal Procedure and Section 138 of the Evidence Act, in so far as it comes to the question of a criminal trial, the order of re-examination at the desire of any person under Section 138 will have to necessarily be in consonance with the prescription contained in Section 311 of the Code of criminal procedure. It is, therefore, imperative that the invocation of Section 311 of the Code of Criminal Procedure and its application in a particular case can be ordered by the Court, only by bearing in mind the object and purpose of the said provision, namely for arriving at just decision of the case. The power vested under the said provision is made available to any Court at any stage in any inquiry or trial or other proceedings initiated under the Code for the purpose of summoning any person as a witness or for examining any person in attendance, even though not summoned as witness or to recall or re-examine any person already examined. In so far as recalling and reexamination of any person already examined is concerned, the Court must necessarily consider and ensure that such recall and re-examination of any person appears in the view of the Court to be essential for just decision of the Case. Therefore, the paramount requirement is arriving at just decision and for that purpose the essentiality of a person to be recalled and re-examined has to be ascertained. To put it differently, while such a widest power is invested with the Court, it is needless to state that exercise of such power should be made judicially and also with extreme care and caution. To put it differently, while such a widest power is invested with the Court, it is needless to state that exercise of such power should be made judicially and also with extreme care and caution. However, trial Court hurriedly came to an adverse conclusion and, therefore, the order is required to be quashed and set aside. 7. Therefore, there is substance in the submission by the learned advocate for the petitioner. For the purpose, I am relying upon following citation: (1) Mohanlal Shamji Soni vs. Union of India reported in AIR 1991 SC 1346 ; (2) Satnam Singh vs. ICICI Bank Ltd. reported in CRM- M-450 of 2015; (3) Natasha Singh vs. CBI reported in (2013) 5 SCC 741 ; (4) Rararam Prasad Yadav vs. State of Bihar reported in (2013) 14 SCC 461 (5) Ashok T Bhutia vs. State of Sikkim reported in AIR 2015 SC 1363; (6) Dilip Premnarayan Tiwari vs. State of Maharashtra reported in AIR 2010 SC 361 ; (7) Sidhartha Vashisht @ Manu Sharma v. State (N.C.T. of Delhi) reported in AIR 2010 SC 2352 . (8) Selvi J. Jaylalitha vs. State of Karnataka reported in 2014 (2) SCC 401 8. In view of above, revision application is allowed as prayed for. Thereby, impugned order dated 13.04.2016 is quashed and set aside. The Sessions Court shall recall both the witnesses at exhibit 78 and 84 to prove the call details of correct mobile numbers. Disposed of accordingly. Rule is made absolute to that extent.