Gujarat High Court
Kiranben Bhikhubhai Unagar vs State Of Gujarat on 30 November, 2023
NEUTRAL CITATION
R/SCR.A/7928/2019 ORDER DATED: 30/11/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 7928 of 2019
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KIRANBEN BHIKHUBHAI UNAGAR
Versus
STATE OF GUJARAT
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Appearance:
MR PRATIK Y JASANI(5325) for the Applicant(s) No. 1
MS URVASHI K MEHTA(11469) for the Respondent(s) No. 2
MR. DHAWAN JAYSWAL, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 30/11/2023
ORAL ORDER
1. Rule returnable forthwith. Learned APP waives service of notice of rule on behalf of respondent No.1 - State of Gujarat.
2. The present petition is filed by the petitioner - original complainant seeking for following the main reliefs:
"(A) YOUR LORDSHIPS be pleased to quash and set aside the impugned order dated 21.06.2019 passed by the Ld. 3rd Addl. Sessions Judge, Rajkot below application Ex. 114 in Sessions Case No. 37/2014, in the interest of justice.Page 1 of 15 Downloaded on : Wed Dec 06 20:33:03 IST 2023
NEUTRAL CITATION R/SCR.A/7928/2019 ORDER DATED: 30/11/2023 undefined (B) YOUR LORDSHIPS be pleased to stay operation, execution and implementation of the impugned order dated 21.06.2019 passed by the Ld. 3rd Addl. Sessions Judge, Rajkot beRespondentlow application Ex. 114 in Sessions Case No. 37/2014 pending the admission, hearing and final disposal of this petition in the interest of justice;
3. Brief facts of the case as per the case of the petitioner in this petition are as such that on 25.10.2013, the respondent no. 2 has brutally murdered her sister by giving multiple blows with knife. The petitioner was also assaulted by respondent no. 2. It is further the case of the petitioner in this petition that the respondent no. 2 was arrested by the Police on 07.11.2013 and he is presently in judicial custody in District Jail, Rajkot. It is further the case of the petitioner in this petition that as per the information available with the petitioner, the respondent no. 2 has been enlarged on temporary bail by competent court and on few occasions, The filed charge- sheet came to be filed on 25.01.2014. Filing of charge sheet has resulted into registration of Sessions Case No. 37/2014 which is pending for consideration before the Ld. Page 2 of 15 Downloaded on : Wed Dec 06 20:33:03 IST 2023 NEUTRAL CITATION R/SCR.A/7928/2019 ORDER DATED: 30/11/2023 undefined 3rd Addl. Sessions Judge, Rajkot. It is further the case of the petitioner in this petition that at initial point of time, respondent no. 2's advocate had cross examined P.W. 2 - Shri Sunilbhai Rameshbhai Solanki, P.W. 3 Shri Kalpeshbhai Gandubhai Gohel. However, thereafter, respondent no. 2 chose to proceed ahead with the case on his own and the said fact has been recorded by the trial court at the commencement of the evidence of prosecution witness no. 4 Shri Gautambhai Jentibhai Goswami. It is further the case of the petitioner in this petition that the respondent no. 2 has thereafter cross examined all the prosecution witnesses, i.e. prosecution witness no. 4, prosecution witness no. 5 Shri Rameshbhai Vallabhbhai Monpara, PW-6 Sanjaybhai Haribhai Sanghani, P.W.7 Nilesbhai Bhagwanjibhai Selara, P.W. 8 Vijaybhai Ramdasbhai Suryavanshi, P.W.9 Dr. Altaf Osmanbhai Dal.
It is further the case of the petitioner in this petition that at the time of cross examining the P.W. 9, the trial court once again had asked respondent no. 2 whether he wants legal aid for proceeding ahead with the trial, however, the respondent no. 2 refused to avail Page 3 of 15 Downloaded on : Wed Dec 06 20:33:03 IST 2023 NEUTRAL CITATION R/SCR.A/7928/2019 ORDER DATED: 30/11/2023 undefined legal aid and chose to proceed on his own. It is further the case of the petitioner in this petition that similarly, while examining PWs 10, 11, 12 and 13, the respondent no. 2 cross examined the said witnesses on his own and refused to avail legal aid. Thereafter, the respondent no. 2 once again engaged advocate to represent him in the proceedings before the trial court and through said advocate, he has cross examined P.W.14 Kishorbhai Jerambhai Jadav. The respondent no. 2 thereafter once gain started cross examining rest of the witnesses on his own and he cross examined P.W.15 Vijaysinh Gagjibhai Dodiya on 03.07.2017, Smt. Kajalben Alpeshbhai Solanki P.W. 16 on 03.07.2017, P.W.17 Kashmiraben Shaileshbhal Desal on 31.07.2017, P.W.18 Kiranben Bhikhubhai Unagar (petitioner herein) on 26.07.2018, P.W.19 Balabhai Rudabhai Amethiya on 10.10.2018, P.W.20 Dharmeshbhai Naginbhai Gondaliya, and P.W.21 Mudubhai Rajshibhai Godhaniya on 27.03.2019. Thereafter, respondent no. 2 again engaged the same lawyer and through him he preferred an application Ex. 114 for recalling of three prosecution witnesses, i.e. prosecution witness no. 15, who was cross examined on 03.03.2017, prosecution witness no. 16 who was cross Page 4 of 15 Downloaded on : Wed Dec 06 20:33:03 IST 2023 NEUTRAL CITATION R/SCR.A/7928/2019 ORDER DATED: 30/11/2023 undefined examined on 03.07.2017 and prosecution witness no. 18 who was cross examined on 26.07.2018 by giving reason that the respondent no. 2 does not appear to be sound in law and that he is not mentally fit to cross examine the witnesses and he thus has omitted various aspects in the cross examination of the said witnesses who he seeks to recall.
It is further the case of the petitioner in this petition that application Ex. 114 was opposed by the Ld. Public Prosecutor vide Ex. 116 wherein it was contended that respondent no. 2 has chosen to proceed ahead with the cross examination on his own after refusing legal aid offered to him by the trial court on multiple times and has completed major portion of the cross examination and that there is no document worth the name produced by respondent no. 2 to substantiate his case that he is not physically mentally fit to cross examine the witnesses. It is further the case of the petitioner in this petition that the trial court thereafter proceeded further with the hearing of Application Ex. 114 and vide impugned order dated 21.06.2019 has been pleased to allow the said Application by permitting recalling of the Page 5 of 15 Downloaded on : Wed Dec 06 20:33:03 IST 2023 NEUTRAL CITATION R/SCR.A/7928/2019 ORDER DATED: 30/11/2023 undefined witnesses as prayed for by the respondent no. 2. Being aggrieved by and feeling dissatisfied with the Impugned order dated 21.06.2019 passed by trial court below Application Ex. 114 in Sessions Case No. 37 of 2014, the petitioner has preferred the present petition.
4. Heard Mr. Pratik Y. Jasani, the learned counsel for the petitioner; Ms. Urvashi K. Mehta, the learned counsel for the respondent No.2 - complainant; and Mr. Dhawan Jayswal, the learned Additional Public Prosecutor (APP) for the respondent No.1 - State of Gujarat.
5. Mr. Pratik Y. Jasani, the learned counsel for the petitioner, has brought my attention to the various depositions annexed to the present petition. In these, the respondent No.2 - original accused and the advocate for the witnesses have cross-examined the witnesses at length. He has pointed out that all relevant questions have been asked and detailed cross-examination of the witnesses, especially three witnesses intended to be recalled under Section 311 of the Criminal Procedure Code (hereinafter referred to as the "Cr.P.C."), has taken Page 6 of 15 Downloaded on : Wed Dec 06 20:33:03 IST 2023 NEUTRAL CITATION R/SCR.A/7928/2019 ORDER DATED: 30/11/2023 undefined place. Therefore, the trial court, erroneously, without providing cogent and convincing reasons and without recording any satisfaction about the necessity of recalling such witnesses, has allowed the application, which is ex facie bad in the eyes of the law. Furthermore, he has argued that the power under Section 311 of the Cr.P.C. cannot be exercised arbitrarily and solely to fill up the lacuna of the evidence. He has relied on the decision of this Court in the case of Imran Karimbhai Madam versus State of Gujarat reported in 2022 (0) AIJEL HC 244984, specifically highlighting paragraphs 4 and 5 are relevant. He has also referred to the provisions of Section 311 of the Cr.P.C. and has argued that there is no bar to exercising such powers even at the fag end of the trial. However, he has emphasized that such powers should be exercised judiciously, not capriciously or arbitrarily. Therefore, he prays to allow the present petition as the impugned F.I.R. is ex facie bad in the eyes of the law and needs to be set aside.
6. On the contrary, Ms. Urvashi K. Mehta, the learned counsel for the respondent No.2 - complainant, has endorsed the order passed by the trial court. She has Page 7 of 15 Downloaded on : Wed Dec 06 20:33:03 IST 2023 NEUTRAL CITATION R/SCR.A/7928/2019 ORDER DATED: 30/11/2023 undefined contended that although the accused has cross-examined the witnesses, particularly the eye-witnesses, the relevant questions could not be asked, causing prejudice to the right of the defense. Furthermore, she has argued that even the mental condition of the accused is not proper. Therefore, considering the aspect of a fair trial, she has submitted that the application submitted under Section 311 of the Cr.P.C. before the concerned trial court is rightfully allowed. In support of her submission, she has relied on the judgment of the Hon'ble Apex Court in the case of the State represented by the Deputy Superintendent of Police versus Tr. No. Seenivasagan reported in 2021 AIR SC 2441, specifically referring to paragraphs 14 and 15 are relevant. Therefore, she has submitted that there is no harm if the order of the trial court granting that application is continued, and the proceeding of the trial can be directed to be expedited. Hence, she prays to dismiss the present petition.
7. Mr. Dhawan Jayswal, the learned Additional Public Prosecutor (APP) for the respondent No.1 - State of Gujarat, has tendered the report received from the Police Inspector, Malaviya Nagar Police Station, Rajkot City, Page 8 of 15 Downloaded on : Wed Dec 06 20:33:03 IST 2023 NEUTRAL CITATION R/SCR.A/7928/2019 ORDER DATED: 30/11/2023 undefined which is taken on record, whereby it is stated that the respondent No.2 - accused person was released on temporary bail and thereafter, he was absconded for about two months. He was not arrested during this period, and after the trial court issued a warrant, he was arrested. Therefore, considering the conduct of the accused and the fact that the trial is now on the verge of conclusion, with the accused having sufficiently cross- examined the witnesses, no fruitful purpose would be served by giving one more opportunity to the accused. Therefore, he prays to quash the order passed by the trial court, which is against the settled position of law. 8.1. I have considered the rival submissions made at the bar by the respective parties. I have also considered the fact that the trial is substantially proceeded and the witnesses, who were sought to be re-examined by way of application under Section 311 of the Cr.P.C. are examined at length and cross-examination as well. On 03.07.2017, P.W.15 - Vijaysinh Gagjibhai Dodiya below Exh.75, on 03.07.2017 Smt. Kajalben Alpeshbhai Solanki P.W.16, and on 26.07.2018, P.W.18 Kiranben Bhikhubhai Unagar (petitioner herein) were examined. Page 9 of 15 Downloaded on : Wed Dec 06 20:33:03 IST 2023
NEUTRAL CITATION R/SCR.A/7928/2019 ORDER DATED: 30/11/2023 undefined 8.2. Subsequently, the impugned application was filed, allowed, and led to the filing of the present petition. Although this Court had granted limited interim relief by granting stay qua these three witnesses, and by allowing the trial to proceed further. It is essential to note that the trial court granted the application by considering serious nature of the offence under Section 302. The accused was given more opportunities to examine these witnesses by engaging lawyers on his behalf, even though, at the relevant time, the accused himself had cross-examined the witnesses at length. However, the trial court has passed erroneous order and has failed to provide further convincing reasons, as mandated by the powers under Section 311 of the Cr.P.C., to establish that the powers were exercised judiciously and not arbitrarily or capriciously and for not filling any lacuna. The trial court did not assign any reasons, which is inconsistent with the legal principles laid down by the Hon'ble Apex Court, from the judgment in the case of Mohanlal Shamji Soni versus Union of India, reported in 1991 2 GLR 974, and the recent judgment relied upon by the learned advocate for the respondent No.2 in the Page 10 of 15 Downloaded on : Wed Dec 06 20:33:03 IST 2023 NEUTRAL CITATION R/SCR.A/7928/2019 ORDER DATED: 30/11/2023 undefined case of Tr. No. Seenivasagan (supra). The settled principle is that the court should exercise its power with the objective of preventing the failure of justice, and such powers cannot be exercised arbitrarily or capriciously. The trial court's order does not record satisfaction that the case is made out under Section 311 of the Cr.P.C. On the contrary, upon examining the record, particularly the depositions and more particularly cross-examination of the aforementioned witnesses, it becomes evident that the respondent No.2 - accused had at length examined these witnesses by posing relevant questions during cross-examination. 8.3. Therefore, considering the judgments arising from offences under Section 302 in an almost identical manner, such as in the case of Imran Karimbhai Madam (supra), specifically highlighting paragraphs 5 and 6, a sunder:
"4. Having heard the learned advocate for the petitioner as also the learned APP and going through the order, it appears that prosecution witness Nos. 5, 7 and 8 were fully examined and cross-examined to their satisfaction on 14.02.2019, 13.05.2019 and 17.07.2019.Page 11 of 15 Downloaded on : Wed Dec 06 20:33:03 IST 2023
NEUTRAL CITATION R/SCR.A/7928/2019 ORDER DATED: 30/11/2023 undefined Even prosecution witness No. 5 was further cross- xamined on 21.02.2019, as his cross-examination was deferred for a week on an application made on behalf of the accused. Thus, it is clear that, to the fullest satisfaction of the learned advocate representing the accused, all the three witnesses for recall of whom this application is filed, were crossexamined. Therefore, there is no question of recalling them, that too, on an application made by the accused after approximately two and a half years of their examination concluded before the Court. Even giving benefit of Corona period, when Courts were closed, it had already started physical hearing in the year 2020 itself, maybe it might have been closed again in the second phase of Corona but thereafter also, physical hearing already started much prior into November, 2022. At any rate, on the ground that certain important questions were not put during the course of cross-examination of those witnesses could not be a reason for recalling those witnesses under Section 311 of the Code of Criminal Procedure, 1973. The petitioner - accused is facing a charge for an offence under Section 302 of the Indian Penal Code along with other offences and the alleged incident had also taken place much prior to their examination i.e. in the year 2019. It is rightly concluded by the learned Judge that either to fill up lacuna or with the change of an advocate, no witness Page 12 of 15 Downloaded on : Wed Dec 06 20:33:03 IST 2023 NEUTRAL CITATION R/SCR.A/7928/2019 ORDER DATED: 30/11/2023 undefined can be recalled at the instance of the accused.
5. A decision of the Supreme Court relied on by the learned advocate for the petitioner in the case of Mohanlal Shamji Soni v. Union of India, reported in 1991 (2) GLR 974, is of no help to him as Supreme Court has said that Section 311 empowers the Courts to invoke its power in this regard at any stage until the judgment is pronounced but at the same time, it has also been said that the power must be used judiciously and not capriciously or arbitrarily. Since, as observed by the Sessions Court in para 3 of the impugned order that detailed cross-examination of each witness running into 2 to 7 page is made, nothing was left out to be asked to the witnesses. At any rate, the application given by the petitioner - accused is also lacking in detail that which of those important questions are left out to be asked to the witness on recall. Not only that, as observed by the learned Judge, thereafter also, prosecution witness Nos. 9 to 13 have also been examined and the case is on the verge of completion.
5.1. Another decision of the Bombay High Court relied on by the learned advocate for the petitioner, rendered in Criminal Application No. 40 of 2014 decided on 22.04.2014, is on the same principles as referred to in Page 13 of 15 Downloaded on : Wed Dec 06 20:33:03 IST 2023 NEUTRAL CITATION R/SCR.A/7928/2019 ORDER DATED: 30/11/2023 undefined the aforesaid Supreme Court decision. However, as observed by the Bombay High Court, relying on a decision of the Supreme Court in the case of Natasha Singh v. C.B.I. (State), reported in (2013) 5 SCC 741, for a proposition that the dominant consideration to exercise jurisdiction under Section 311 of the Code is, whether calling of a witness was necessary for the just decision of a case. However, petitioner has failed to show that without recalling the witnesses, Court is unable to deliver the judgment. Not only that, what is left out to be asked to the said witness is also not stated in the application praying for recalling of those three witnesses."
8.4. Considering the above legal position and the facts of the present case, I am of the opinion that the trial court's order is not sustainable in the eyes of the law. The trial court has failed to appropriately consider the provisions of Section 311 of the Cr.P.C. in the present case, rendering the order arbitrary and capricious without judicious consideration. Therefore, intervention is required to be called for, and I deem it fit to exercise my powers under Article 227 of the Constitution of India.
9. In light of the above, following order is passed. Page 14 of 15 Downloaded on : Wed Dec 06 20:33:03 IST 2023
NEUTRAL CITATION R/SCR.A/7928/2019 ORDER DATED: 30/11/2023 undefined 9.1. Resultantly, the present petition is allowed. 9.2. The impugned order dated 21.06.2019 passed by the learned 3rd Addl. Sessions Judge, Rajkot below application Ex. 114 in Sessions Case No. 37 of 2014 is hereby quashed and set aside.
9.3. Since the matter is pending since long, the trial court is directed to expedite the proceeding as expeditiously as possible, preferably within a period of four months from today.
Rule is made absolute. Direct service is permitted.
(SANDEEP N. BHATT,J) DIWAKAR SHUKLA Page 15 of 15 Downloaded on : Wed Dec 06 20:33:03 IST 2023