NEUTRAL CITATION
R/SCR.A/1265/2020 ORDER DATED: 05/10/2023
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 1265 of 2020
==========================================================
RAVIRAJSINH KANUBHAI KANCHAVA
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR PREMAL S RACHH(3297) for the Applicant
MR CHINTAN DAVE, APP for the Respondent - State
==========================================================
CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 05/10/2023
ORAL ORDER
1. The present application is filed by the applicant under Articles 226 and 227 of the Constitution of India challenging the impugned judgment and order dated 03.01.2020 passed by the learned Additional Sessions Judge, Jamnagar in Application under Section 311 of the Code of Criminal Procedure, 1973 below Exh.19 in Sessions Case No.83 of 2018, whereby the learned trial Court has allowed the application filed by the prosecution for recalling of witness.
2.1 The brief facts of the case are that complainant and the applicant were known to each other since seven months prior to the alleged incident and frequently called each other on mobile phone. Later on, they both feel in love Page 1 of 10 Downloaded on : Fri Oct 06 20:45:50 IST 2023 NEUTRAL CITATION R/SCR.A/1265/2020 ORDER DATED: 05/10/2023 undefined and both promised each other to get married. Thereafter, on 13.11.2017, the applicant called the complainant to join him in his car, thus, the complainant willingly accompanied the applicant and then they both stayed at different placed at Kodinar and Diu together for two days. Thereafter, the applicant dropped the complainant at nearest place to her house on 14.11.2017 as the applicant got the news that his father has suffered a heart attack.
2.2 Thereafter, the complainant has lodged a complaint before the Jamnagar City 'C' Division Police Station for the offences punishable under Sections 376 and 366 of the IPC against the applicant, wherein it is alleged that the applicant lured her for marriage but now he is not ready and willing to marry her, therefore, legal action be taken against him. 2.3 The investigation is over and charge-sheet is filed which is culminated into the Sessions Case being Sessions Case No.83 of 2018, which is pending before the learned Additional Sessions Judge, Jamnagar. In the said proceeding, the complainant was examined - Exh.13 and cross-examined by the prosecutrix - Exh.14.
2.4 Thereafter, on 13.12.2019, an application below Exh.19 was filed by the prosecution to recall the complainant Page 2 of 10 Downloaded on : Fri Oct 06 20:45:50 IST 2023 NEUTRAL CITATION R/SCR.A/1265/2020 ORDER DATED: 05/10/2023 undefined under Section 311 of the Code of Criminal Procedure, 1973, which is allowed by the learned trial Court vide impugned order. Hence, this application by the applicant - accused before this Court.
3. Heard learned advocates. Rule. Learned APP waives service of notice of rule on behalf of the State. With consent of the learned advocates, this application is taken up for hearing and final disposal today.
4.1 Learned advocate Mr. Premal Rachh has submitted that this is completely a false and frivolous complaint by the complainant against the applicant. He has submitted that the complainant has specifically admitted that she accompanied with the applicant, as per her own will and wish and with consent and without any force, inducement or coercion on the part of the applicant. He has submitted that further, the complainant has categorically stated in said complaint that neither she had entered into physical relations with the applicant nor the applicant has forced or threatened her in any manner. He has submitted that the complainant has narrated different story in the statement taken by the investigating officer than the complaint. 4.2 He has submitted that while examining the Page 3 of 10 Downloaded on : Fri Oct 06 20:45:50 IST 2023 NEUTRAL CITATION R/SCR.A/1265/2020 ORDER DATED: 05/10/2023 undefined complainant at Exh.13 and cross-examining her at Exh.14, she has not stated that the applicant has forcibly had physical relations with her against her Will. She has further admitted that they were known to each other since last six months and were having a love affairs. He has submitted that the learned trial Court has allowed the application of the prosecution at Exh.19 for recalling the complainant without considering the settled legal position and by misinterpreting the provisions of Section 311 of the Code. He has submitted that there was no any explanation by the prosecution to make such application for recalling of the complainant and that too after completion of her evidence. He has submitted that the application of the prosecution appears to be only with a view to fill up the lacuna. He has submitted that in her Further Statement under Section 164 has no relevance at this stage since the investigating officer is yet to be examined. Therefore, this was happened when the complainant has deposed earlier. Therefore, again calling the complainant only for explanation about her earlier statement ought not to have been permitted by the learned trial Court.
4.3 In support of his submissions, he has relied upon the judgment reported in 1991 (2) GLR 974 in the case of Mohanlal Shamji Soni versus Union of India, more Page 4 of 10 Downloaded on : Fri Oct 06 20:45:50 IST 2023 NEUTRAL CITATION R/SCR.A/1265/2020 ORDER DATED: 05/10/2023 undefined particularly paragraphs 9 and 18 thereof. He has submitted that the impugned order is required to be quashed as the learned trial Court has committed an error which caused prejudice to the applicant.
5.1 Per contra, Mr.Chintan Dave learned APP for the State has drawn the attention to para 7 of the impugned order, which reads as under :
" 7. Moreover, for this order the court has relying on reported judgment of Hon'ble Apex Court in the matter between Zahira Khatun versus State of Gujarat & others, in which Hon'ble Apex Court has expressed the lgal views of Section 311 of Cr.P.C. wherein it is held that Court can not sit silently as a spectator in the trial and therefore, taking into consideration legal opinion of said judicial pronouncement in the present case on hand, the court is of the opinion that if the prosecution is allow to recall the complainant about express of type complaint Dtd 29.12.2017 then the accused shall not suffer any legal injury or the legal defense as the accused can rebuttal of evidence with the cross-examination or by taking evidence Page 5 of 10 Downloaded on : Fri Oct 06 20:45:50 IST 2023 NEUTRAL CITATION R/SCR.A/1265/2020 ORDER DATED: 05/10/2023 undefined under section 233 of Cr.P.C. or through Section 313 of Cr.P.C. Therefore, excessing the judicial discretion by allowing the present application the court feels that there is no question abut filing of lacuna through the present application by the prosecution as both the parties have equally legal opportunities and remedies for the interpretation of complaint at complainant at Exh.14 and type complaint of Dtd 29.12.2017 in the trial. Therefore, in view of scope of section 311 of Cr.P.C. we need to clear that here in the present case on hand there are two complaints at Exh.14 Dtd 23.12.2017 and second one is type complaint of Dtd 29.12.2017. So both the documents required judicial interpretation about the form of FIR and therefore, if the opportunities are given to both the parties by the present order then justice will serve to he final verdict. Hence, the following verdict is passed."
5.2 He has submitted that in view of the provisions of Section 311 of the Code, such powers can be exercised by the Court very judiciously and with the purpose of reaching the just decision in the case and therefore, when the Court has also to consider the aspect of opportunity will be also Page 6 of 10 Downloaded on : Fri Oct 06 20:45:50 IST 2023 NEUTRAL CITATION R/SCR.A/1265/2020 ORDER DATED: 05/10/2023 undefined available. The present petitioner to cross examine such witness. He has submitted that no prejudice would be caused to the case of the applicant. He has submitted that on the contrary, this will help the concerned learned trial Court to find out the truth and could reach to the logical conclusion. 6.1 Considering the rival submissions and considering the averments made in this application, I am of the opinion that the learned trial Court has given proper and convincing reasons while granting application of the prosecution. 6.2 The provisions of Section 311 of the Code 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 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 Page 7 of 10 Downloaded on : Fri Oct 06 20:45:50 IST 2023 NEUTRAL CITATION R/SCR.A/1265/2020 ORDER DATED: 05/10/2023 undefined essential to the just decision of the case."
6.3 In view of above and considering the judgment of the Hon'ble Apex Court in the case of Hanuman Ram versus State of Rajasthan reported in (2008) 15 SCC 652, whereby the Hon'ble Apex Court has observed as under :
" The determinative factor is whether it is essential to the just decision of the case. The Section is not limited only fro 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 applied 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, Page 8 of 10 Downloaded on : Fri Oct 06 20:45:50 IST 2023 NEUTRAL CITATION R/SCR.A/1265/2020 ORDER DATED: 05/10/2023 undefined the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind."
6.4 It is also relevant to note that in the case of Rajaram Prasad Yadav versus State of Bihar reported in (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 by of just decision of the case. 6.5 Therefore, in view of above position of law, the centripetal consideration for exercise of powers for calling or recalling of 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.
Page 9 of 10 Downloaded on : Fri Oct 06 20:45:50 IST 2023
NEUTRAL CITATION R/SCR.A/1265/2020 ORDER DATED: 05/10/2023 undefined 6.6 Considering this aspect and considering the nature of offence as well as considering the reasoning given by the learned trial Court, I found that no interference is called for in the impugned order which is otherwise found just, proper and in accordance with law and in consonance with the material available on record and therefore, the present application needs to be dismissed and is dismissed accordingly. Rule is discharged.
(SANDEEP N. BHATT,J) M.H. DAVE Page 10 of 10 Downloaded on : Fri Oct 06 20:45:50 IST 2023