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2024 DIGILAW 2183 (GUJ)

Hasmukhbhai Lalitbhai Popat v. State Of Gujarat

2024-12-10

SANDEEP N.BHATT

body2024
JUDGMENT : 1. The present petition is filed for seeking the following reliefs: “(A)THIS HON'BLE COURT may kindly be pleased to admit and allow this Special Criminal Application; (B)THIS HON'BLE COURT may be pleased to issue writ of mandamus or any other appropriate writ, order or direction and thereby be pleased to quash and set aside impugned order dated 02.07.2022 passed by learned 2nd Additional Sessions Judge and Special Fast Track Judge for Rape and POCSO Cases, Jamnagar in an application below Exh. 72 in Special Pocso Case No. 11/2019 (ANNEXURE - 'A') and further be pleased to allow application preferred by petitioner below exh.72 in Special Pocso Case No. 11/2019, in the interest of justice; (C) Pending the admission and final hearing of this petition, this Hon'ble Court may be pleased to stay the further proceedings of Special Pocso Case No. 11/2019 pending before learned 2nd Additional Sessions Judge and Special Fast Track Judge for Rape and POCSO Cases, Jamnagar, in the interest; (D) THIS HON'BLE COURT may kindly be pleased to grant such other and further relief's as may deemed fit, just and proper in the facts and circumstances of the case, in the interest of justice;” 2. Heard Mr. Jay Thakkar, learned advocate for the petitioner and Mr. Manan Mehta, learned APP for the respondent – State. 3.1 Mr. Jay Thakkar, learned advocate for the petitioner has submitted that the trial court has committed error in passing the impugned order. He has submitted that the present application is filed under Section 311 of the Criminal Procedure Code, 1973 for re-calling the witness, who was earlier examined on 27.08.2027 and thereafter, the application is filed at Exh.72 on 04.10.2021 numbered in Special POCSO Case No.11 of 2019 before the Special POCSO Court, Jamnagar. He has further submitted that the trial court has also committed error in holding that granting of such application will amount to filling in the lacuna as the petitioner has already availed the opportunity to examine the said witness at earlier point of time and after delay of such period, such application is filed. He has further submitted that the trial court has also committed error in holding that granting of such application will amount to filling in the lacuna as the petitioner has already availed the opportunity to examine the said witness at earlier point of time and after delay of such period, such application is filed. He has further submitted that trial court has also committed error by observing that granting of such application will certainly prejudice the rights of the prosecution to the certain extent and, therefore, he has submitted that such grounds are not in consonance with the law and interference of this Court is required to be called for. He has submitted that though the matter is at the stage of final argument, the Court can consider such application at any stage of trial, more particularly, Section 311 of the Criminal Procedure Code meant for this, if the case is made out. 3.2 In support of his submissions, he has relied on the judgment of the Hon’ble Apex Court in the cases of (i) Varsha Garg vs. The Stage of Madhya Pradesh and Ors. reported in 2022 LiveLaw (SC) 662, (ii) Rajendra Prasad vs. Narcotic Cell reported in (1999) 6 SCC 110 and, therefore, he has submitted that the present petition is required to be allowed. 4. Learned APP Mr. Manan Mehta has strongly opposed the submissions made at the bar by learned advocate for the petitioner and has submitted that merely because the trial is proceeded further and thereafter, with a view to filling the lacuna, the present application is filed and that too after 2 years of the examination of the witness and thereafter, the present petition is filed by challenging the impugned order passed on 02.07.2022, which is presented before this Court on 24.04.2023. Therefore, he has submitted that deliberate attempt has been made to delay the proceeding of trial and, therefore, he submitted that the order passed by the trial court is in accordance with the law and in accordance with the facts of the present case and it is passed after considering the necessary aspects of the matter and, therefore, no interference is required to be called for by this Court. 5.1 I have considered rival submissions made at the bar by the respective parties. 5.1 I have considered rival submissions made at the bar by the respective parties. It is fruitful to refer provisions of Section 311 of the Criminal Procedure Code, 1973, as under: “Section 311 in The Code of Criminal Procedure, 1973:- 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 in attendance, though not summoned as a witness, or recall and re-examine 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. [311-A. Power of Magistrate to order person to give specimen signatures or handwriting. [Inserted by Act of 2005, Section 27 (w.e.f. 23-6-2006).] - If a Magistrate of the first class is satisfied that, for the purposes of any investitgation or proceeding under this Code, it is expedient to direct any person, including an accused person, to give specimen signatures or handwriting, he may make an order to that effect and in that case the person to whom the order relates shall be produced or shall attend at the time and place specified in such order and shall give his specimen signatures or handwriting: Provided that no order shall be made under this Section unless the person has at some time been arrested in connection with such investigation or proceeding.]” 5.2 I have also considered the fact that normally, the Court is granting the opportunity to the party who is coming by filing the application under Section 311 of the Cr.P.C. In the present case, the dates are very material to consider the facts of the present case. The F.I.R. is registered on 29.07.2019 and thereafter, charge-sheet is filed on 23.02.2019 and the case is numbered as POCSO Case No.11 of 2019 before the concerned POCSO Court, and thereafter, the charge is framed on 29.07.2019 and the victim was examined and cross-examined at length on 27.8.1019. Thereafter, almost a laps of more than 2 years, the present application before the trial court is filed on 04.10.2021, which was ultimately decided by the trial court on 02.07.2022 by rejecting said application. Thereafter, challenging the same, the present petition is also filed on 27.04.2023, which is pending before this Court. Thereafter, almost a laps of more than 2 years, the present application before the trial court is filed on 04.10.2021, which was ultimately decided by the trial court on 02.07.2022 by rejecting said application. Thereafter, challenging the same, the present petition is also filed on 27.04.2023, which is pending before this Court. All these times and for whatever the reasons, the matter is adjourned from time to time and today in the month of December, 2024, this Court is considering this petition for the first time after hearing the parties. 5.3 There is no quarrel about the ratio of the judgments of cited at the bar by the learned advocate for the petitioner, which are otherwise binding to this Court. Furthermore, there is no dispute about the fact that normally, the Court can grant prayers at any stage of the trial if the Court is of the opinion that such application under Section 311 of the Cr.P.C. is required to be granted. Merely, because the accused could not ask for cross examination of the witness, on certain aspect and that too, after 2 years after examination of the witness if this Court considers the present petition in favour of the present petitioner, then after 5 years of the original deposition recorded by the victim, the permission which is sought under Section 311 is not required to be granted. I found that the reasons assigned by the trial court are possible and appropriate looking to the facts and circumstances of the present case. It can certainly be considered an attempt to filling in the lacuna by filing such application by the defence, more particularly, when the deposition is recorded in the year 2019, the defence is well aware of the contents of the deposition, which is recorded examining and cross examining of such witness. Thereafter, in the year 2021, such application is filed and, in the year 2022, such application is decided. Thereafter, in the year 2021, such application is filed and, in the year 2022, such application is decided. Thereafter also, the petitioner has awaited for such a long period for challenging that order before this Court and thereafter, it seems that for whatever the reason, the matter could not be proceeded on the merits of the case and, therefore, I am of the view that granting of such application, at this fag end more particularly at the time of recording of arguments of the parties, which is now fixed on 13.12.2024, will create serious prejudice to the rights of the prosecution and, more particularly, considering the provisions of Section 33 of the POCSO Act which envisages that it is the duty of the Court that victim-child should not be repeatedly called in the Court for examination and/or cross-examined. This aspect is also considered by the trial court. All the reasons given by the trial court and the facts recorded by the trial court are as per the records and in consonance with the provisions of law and the facts of the present case. In light of the overall, I am of the view that the trial court has not committed any error in passing the impugned order and hence, the present petition is found meritless. 6. In view of the above, the present petition is dismissed with no order as to costs.