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2025 DIGILAW 343 (GUJ)

Bhupendra Meghajibhai Jaysing v. State of Gujarat

2025-03-28

PRANAV TRIVEDI

body2025
JUDGMENT : (PRANAV TRIVEDI, J.) 1. Present revision application under Section 397 read with Section 401 of the Code of Criminal Procedure is preferred by the applicant – original accused no. 1 being aggrieved by order dated 05.01.2018 passed by the learned Additional Sessions Judge, Morbi, District Rajkot below Exhibit-532 in Sessions Case No. 25 of 2001, whereby the application filed by the applicant to reopen the right to cross-examine the complainant was closed. 2. The brief fact culminating in filing of the present application is that on 25.09.2000, the complainant - Pravinchandra Vaghjibhai Luhana gave an information to Morbi Police Station against seven accused for the offences punishable under Sections 323, 452, 420, 467, 477 and 114 of the Indian Penal Code. Pursuant to filing of the complaint, investigation took place and on completion of the same, charge sheet came to be filed against 8 accused persons for offences punishable under Sections 395, 452, 327, 467, 477, 201, 120B and 34 of the Indian Penal Code. Thereafter, on 27.04.2006, learned Additional Sessions Judge, Morbi vide Exhibit-1 framed charge against all 8 accused persons. It is the case of the applicant that the evidence of the complainant was recorded below Exhibit-28 as PW-1. It is further case of the applicant in view of the fact that advocate appearing on behalf of the applicant did not remain present on several dates and therefore, right to cross-examine the complainant was closed on 25.09.2017. 2.1. It is case of the applicant that on several occasions, serious remarks against the advocate of the applicant were passed which is clearly mentioned in the rojkam order-sheet. Thereafter, trial was not conducted smoothly due to altercation between the advocate for the applicant and the learned Presiding Officer. In view of the same, applicant changed the advocate and submitted an application on 15.12.2017 vide Exhibit-532 requesting the learned Sessions Court to allow the applicant to cross-examine the witness by re-opening the right to cross-examination. However, the learned Sessions Court vide order dated 05.01.2018 dismissed the application below Exhibit-532. Subsequently, application below Exhibit-536 came to be filed requesting to stay the order passed by the learned Sessions Court. The learned Sessions Court, however granted 20 days time i.e. upto 25.01.20218 while staying the order dated 05.01.2018 passed below Exhibit-532. However, the learned Sessions Court vide order dated 05.01.2018 dismissed the application below Exhibit-532. Subsequently, application below Exhibit-536 came to be filed requesting to stay the order passed by the learned Sessions Court. The learned Sessions Court, however granted 20 days time i.e. upto 25.01.20218 while staying the order dated 05.01.2018 passed below Exhibit-532. Order passed below Exhibit-532 rejecting the application of the applicant to reopen the right to cross-examine the complainant is the subject matter of controversy in the present application. 3. Heard Mr. Yatin Soni, learned advocate appearing for the applicant and Mr. Rohan Raval, learned Additional Public Prosecutor appearing for the State – respondent. 4. Mr. Yatin Soni, learned advocate appearing for the applicant has submitted that there is no fault on the part of the applicant of not cross-examining the complainant. Other accused have already cross- examined the complainant. Right of the present applicant to cross examination of the complainant is closed. As serious aspersions are alleged on the advocate appearing for the applicant before the trial court, Mr. Yatin Soni, learned advocate for the applicant has shifted the whole onus of delay of cross-examination of the complainant to the concerned advocate engaged by the applicant before the Sessions Court and it was very vehemently argued that the mistakes made by the learned advocate cannot adversely affect the applicant. 4.1. Mr. Yatin Soni, learned advocate for the applicant has also relied upon the rojkam produced and appended at page ‘28’ to ‘30’, wherein it was mentioned that advocate had misbehaved with the learned Sessions Court. Subsequently, cost was imposed upon the advocate which has led to delay in cross-examining the witness. In wake of such submissions, Mr. Yatin Soni, learned advocate for the applicant has requested to grant the reliefs as prayed for in the revision application. 5. Per contra, Mr. Rohan Raval, learned Additional Public Prosecutor appearing for the State – respondent has submitted that on perusal of the material placed on record, the Court may pass appropriate orders. 6. Having heard the learned advocates appearing for the parties and having perused the material on record, this Court is in immense pain to see that the incident is of the year 2000 and has not proceeded further for span of 25 years. 6. Having heard the learned advocates appearing for the parties and having perused the material on record, this Court is in immense pain to see that the incident is of the year 2000 and has not proceeded further for span of 25 years. From the record it can be seen that the complainant had to be cross-examined way back in the year 2006 but the same is pending. This aspect can be clearly borne out from the order impugned, more particularly from paragraph ‘11’ at page ‘19’ of the paper book wherein the learned Sessions Court has categorically observed that the for a period of ten years i.e. from the year 2006, the complainant had continuously remained present, but no cross-examination was done. 6.1. The only argument canvassed by Mr. Yatin Soni, learned advocate for the applicant is with regard to shifting burden on the advocate who had appeared before the learned Sessions Court and that too during proceeding in the year 2017. Thus, there is no explanation whatsoever with regard to not going ahead with cross- examination of complainant from the year 2006 to 2016. The order sheet appended with the paper book shows that incident has happened in the year 2017 and discussion on various dates is made regarding altercations of the advocate of the applicant and the learned Sessions Court. Mr. Yatin Soni, learned advocate for the applicant was not only unable to explain the delay of 10 years in not cross-examining the complainant from the year 2006 to 2016, but has also failed to explain as to why the applicant through his advocate has not cross-examined the complainant when the advocate of other accused have cross-examined the complainant. 7. Casting aspersions on the advocate concern appearing before the learned Sessions Court is the only ground relied upon by Mr. Yatin Soni, to challenge the order impugned. It is true that right of litigant cannot be curtailed and more particularly when a litigant was unable to assert his precious right of cross-examination of an important witness. However, in the facts and circumstances of the case, the conduct of litigant is required to be heavily deprecated. It is true that the conduct of the advocate who appeared before the learned Sessions Court in the year 2017 is also a subject of question. There is no explanation whatsoever coming forth from the pleadings or from the arguments of Mr. It is true that the conduct of the advocate who appeared before the learned Sessions Court in the year 2017 is also a subject of question. There is no explanation whatsoever coming forth from the pleadings or from the arguments of Mr. Yatin Soni, as to what was the reason for not cross-examining the complainant from the year 2006 till 2016. This aspect clearly shows that present applicant has tried his level best to derail the trial. However, pertinent point for consideration would be whether such conduct would entail a litigant for deprivation of his right of cross-examination of an important witness. The learned Sessions Court while passing the order impugned has categorical discussed the reasons for not allowing the applicant to reopen his right of cross-examination. Such findings returned by the learned Sessions Court are in no way having any ingredient of infirmity. However, when there is a issue of right to cross- examination, it is required to be considered sympathetically, albeit, with a strong word of caution and warning. The right to cross- examine would be provided to the present applicant but with strong observation that if at all any further attempt is made by the applicant to stall or derail the trial, the learned Sessions Court would be at liberty to pass appropriate orders against the applicant as permissible in law. It is further observed that this would be the last chance available to the applicant to assert his right. 8. In view of the aforesaid discussion, the present application is allowed. The impugned order dated 05.01.2018 passed by the learned Sessions Court, Morbi is quashed and set aside with a direction that the applicant is required to complete the cross- examination of the complainant within a period of one month from today. It is further requested to the learned Sessions Court to conclude the trial at the earliest as the same is pending since long. At the cost of repetition, this Court observes immense pain in seeing the proceedings of the present case and to see as to what extent efforts can be made to derail the trial. In the present case, the incident is of the year 2000 and only one witness is examined and trial is pending at large for a period of 25 years. This aspect is nothing but travesty of justice. In the present case, the incident is of the year 2000 and only one witness is examined and trial is pending at large for a period of 25 years. This aspect is nothing but travesty of justice. However to see that the balance is maintained and deterrent is made, the applicant is directed to pay a cost quantified at Rs.25,000/- to assert his right. The cost imposed shall be deposited with the Gujarat State Legal Services Authority within a period of seven days from today, failing which it would not be open to the applicant to adjudicate his right which are subject matter of controversy in present revision application, any further. 9. With the aforesaid observations and discussions, the present application stand disposed of. Rule is made absolute accordingly.