Gujarat High Court
Deelipsinh Khumansinh Rathod vs State Of Gujarat on 31 July, 2025
NEUTRAL CITATION
R/SCR.A/7948/2021 ORDER DATED: 31/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 7948 of 2021
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DEELIPSINH KHUMANSINH RATHOD
Versus
STATE OF GUJARAT & ORS.
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Appearance:
AKSH S GANDHI(9402) for the Applicant(s) No. 1
MR ANAND BRAHMBHATT(6096) for the Applicant(s) No. 1
MR DIGANT M POPAT(5385) for the Respondent(s) No.
10,11,12,13,14,15,16,17,18,2,4,5,6,7,8,9
MR RAJENDRA M DESAI(3184) for the Respondent(s) No.
10,11,12,13,14,15,16,17,18,2,4,5,6,7,8,9
MR. TIRTHRAJ PANDYA, APP for the Respondent(s) No. 1
UNSERVED EXPIRED (N) for the Respondent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 31/07/2025
ORAL ORDER
1. Heard learned advocate Mr. A.S. Gandhi appearing for the petitioner and the learned Additional Public Prosecutor representing the respondent-State. Despite due service of notice, respondent No. 2 has neither entered appearance nor caused any representation to be made before this Court.
2. The petitioner, by way of the present petition, seeks to assail the legality and propriety of the order dated 15.10.2019, passed below Exhibit-280 in Sessions Case No. 65 of 2010, which is presently pending adjudication before the learned 5th Additional Sessions Judge, Ahmedabad (Rural). The impugned application (Exhibit-280) was preferred by the de facto complainant through his learned counsel, praying for the recall of prosecution witness Shri Yogendrasinh Khumansinh Rathod for the purpose of further examination.
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3. The learned trial Court, upon due consideration of the material on record and after extensively referring to the judgment rendered by a coordinate Bench of this Court in Criminal Revision Application No. 323 of 2012, was pleased to reject the said application, holding it to be devoid of merit. Aggrieved by the said order, the petitioner has approached this Court invoking its supervisory jurisdiction.
4. At the very threshold, it would be apposite to extract the relevant portion of the order passed by the learned trial Court, which encapsulates the rationale for dismissal of Exhibit-280 and constitutes the substratum of the present challenge. The said observations read thus:
"5. Upon considering the submissions advanced by both parties, it clearly emerges that the present application has been preferred by the original complainant-victim, Shri Dilipsinh Rathod, through his learned counsel. The application bears an endorsement by the learned Government Advocate, who has appended the words 'Thu Me' in affirmation thereof. The present application is filed under Section 311 of the Code of Criminal Procedure, seeking to summon and examine the photographer who allegedly captured the photographs relied upon during the deposition of the witness, Shri Dilipsinh Nathusinh Rathod, to substantiate the said photographic evidence. On a careful perusal of the record, it becomes evident that the photographs forming the basis for summoning the said photographer were initially submitted at the behest of the complainant, as reflected from the deposition of the victim at Exhibit No. 68. During the course of his examination-in- chief, the complainant sought to introduce a total of 18 documents listed at Exhibit No. 69, marked as Articles A to O. In order to get these documents exhibited, the original complainant had preferred an application through the learned Page 2 of 9 Uploaded by MANISH MISHRA(HC01776) on Mon Aug 04 2025 Downloaded on : Mon Aug 04 21:42:23 IST 2025 NEUTRAL CITATION R/SCR.A/7948/2021 ORDER DATED: 31/07/2025 undefined Government Advocate at Exhibit No. 70. However, my learned predecessor, after due consideration, passed a detailed order rejecting the said application and declined to exhibit the documents marked as Articles A to O. Aggrieved by the said order, the original complainant approached the Hon'ble Gujarat High Court by filing Criminal Revision Application No. 323 of 2012. Upon hearing both parties, the Hon'ble High Court, vide judgment dated 27.07.2012, dismissed the said revision application, thereby affirming the rejection of the request to exhibit those documents. Notably, in paragraph 4 of the judgment, the Hon'ble High Court has made a significant observation, which reads as under:-
4. As reproduced in the earlier part of this order, the petitioner has not categorically stated as to which order he has challenged and, therefore, the prayer made in the revision application is vague and hence the revision application cannot be entertained.
It also appears that by filing application Exh.69 certain documents were produced when the witness was being examined by the prosecution. It is not in dispute that those documents were not part of the evidence collected during the course of investigation. The copy of application Exh.69 annexed with the compilation also indicates that these documents were not sought to be produced by the prosecution but it was produced by the alleged victim. The record does not indicate that the learned APP sought permission to produce the documents on behalf of the prosecution. It is settled position that the prosecution is required to follow the procedure to produce the evidence during recording of evidence when such evidence is not collected during investigation and is not a part of chargesheet. The record does not indicate that proper procedure was followed for production of evidence which was not collected during the course of investigation. Therefore, the learned trial Judge was justified in refusing to admit the documents sought to be produced by Exh.69. Hence, the learned trial Judge not commit any jurisdictional Page 3 of 9 Uploaded by MANISH MISHRA(HC01776) on Mon Aug 04 2025 Downloaded on : Mon Aug 04 21:42:23 IST 2025 NEUTRAL CITATION R/SCR.A/7948/2021 ORDER DATED: 31/07/2025 undefined error and, therefore, the revision application cannot be entertained.
6. In view of the judgment rendered by the Hon'ble Gujarat High Court, particularly the observations recorded in paragraph 4 thereof, it is apparent that the documents sought to be produced by the victim-witness were neither a part of the investigation papers nor were they seized during the course of investigation. The Hon'ble High Court has categorically held that these documents were not tendered by the prosecution but were brought on record solely at the instance of the victim-witness. Furthermore, the High Court has expressly noted that the learned Government Advocate failed to obtain prior permission as mandated by law before attempting to introduce these documents into evidence. It was further emphasized that when such documents are not part of the case papers arising from investigation, they must be produced strictly in accordance with the procedure prescribed under the Code of Criminal Procedure and the principles laid down in this regard. Since the prosecution failed to follow the requisite legal formalities, the trial court rightly rejected the application seeking exhibition of the said documents. The rejection order passed by the learned trial court was subsequently challenged by the original complainant by way of Criminal Revision Application No. 323 of 2012. However, the Hon'ble High Court, after considering the rival submissions, dismissed the revision application and thereby affirmed the order of the trial court. It is pertinent to note that the present application also emanates from the very same complainant-victim, who has filed it through a private counsel, and that the language, grounds, and prayers in this application are verbatim identical to those raised in the earlier application (Exhibit
70), which had already been rejected. Thus, it is evident that the present application is nothing but a verbatim reproduction of the previously rejected application, merely camouflaged in a different procedural form. Moreover, it has again not been preferred by the Public Prosecutor but by the complainant's private advocate, which runs contrary to the spirit and reasoning of the Hon'ble High Court's earlier order. Permitting such an application at this stage, despite Page 4 of 9 Uploaded by MANISH MISHRA(HC01776) on Mon Aug 04 2025 Downloaded on : Mon Aug 04 21:42:23 IST 2025 NEUTRAL CITATION R/SCR.A/7948/2021 ORDER DATED: 31/07/2025 undefined the express findings of the Hon'ble Gujarat High Court in Criminal Revision Application No. 323 of 2012, would amount to acting in derogation of the binding precedent and would result in judicial impropriety. In fact, such a course may even verge upon contempt of the High Court's decision. It is well settled that the trial court must ensure that no action is taken contrary to the binding directions of a superior court. Hence, considering the totality of circumstances and in light of the binding observations of the Hon'ble High Court, the present application is devoid of merit and not maintainable in law. It is, therefore, liable to be rejected."
5. It transpires from the afore-quoted findings recorded by the learned Trial Court that during the deposition of the victim at Exhibit-68, the said witness, for the first time, introduced a set of 18 photographs accompanied by a list at Exhibit-69, which were collectively marked as Articles A to O. Pursuant thereto, the learned advocate appearing for the de facto complainant moved an application at Exhibit-70, seeking that exhibit numbers be formally assigned to the aforementioned photographs. However, the learned Sessions Court, upon due consideration, was pleased to reject the said application, thereby declining to treat the documents as exhibits.
6. Being dissatisfied with the said rejection, the de facto complainant preferred Criminal Revision Application No. 323 of 2012 before this Court. Vide reasoned order dated 27.07.2012, this Court was pleased to dismiss the said revision application, unequivocally holding that the documents in question did not form part of the chargesheet and, hence, were inadmissible as exhibits during the course of trial. It is significant to note that the learned counsel appearing for the petitioner has not brought to the notice of this Court any challenge to the said order before the Hon'ble Page 5 of 9 Uploaded by MANISH MISHRA(HC01776) on Mon Aug 04 2025 Downloaded on : Mon Aug 04 21:42:23 IST 2025 NEUTRAL CITATION R/SCR.A/7948/2021 ORDER DATED: 31/07/2025 undefined Supreme Court, and as such, the same has attained finality.
7. In the wake of the above development, the learned Trial Court, upon a holistic appraisal of the matter, observed that Exhibit-280, being a direct sequitur to the earlier application at Exhibit-70, could not be entertained as it sought to revisit an issue which had already been conclusively determined by the coordinate Bench of this Court. Consequently, the learned Trial Court, bound by the said precedent, rightly declined to adopt a view in derogation thereof and rejected the application at Exhibit-280.
8. Insofar as the evidentiary status of P.W.-4, Shri Yogendrasinh Khumansinh Rathod, is concerned, the record reveals that he was examined at Exhibit-144. A careful perusal of his examination-in- chief demonstrates that at no point did he assert or even suggest that he was the person who had captured the photographs marked as Articles A to O. Furthermore, the said witness was thoroughly cross- examined by the learned advocate for the accused. Even his statement recorded under Section 161 of the Code of Criminal Procedure is conspicuously silent on any such factum regarding his involvement in taking the said photographs.
9. Notwithstanding the aforementioned position, the de facto complainant has now invoked the jurisdiction of the Trial Court under Section 311 of the Code, praying for recall of P.W.-4 ostensibly with the object of eliciting testimony to prove the said photographs, asserting that he was indeed their author.
10. Section 311 of the Cr.P.C. reads as under:-
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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."
11. Section 311 of the Code of Criminal Procedure is couched in broad and liberal terms, conferring upon the Court wide and unfettered discretion to summon any person as a witness, or to recall and re-examine any person already examined, if the Court is of the considered view that such evidence is essential for a just and fair adjudication of the case. The amplitude of this provision is undeniably vast and is intended as a potent tool in the hands of the Court to discover the truth and ensure that justice is not defeated on account of inadvertence, error, or any omission on the part of the prosecution or the defence in bringing forth relevant and material evidence.
12. The underlying legislative intent of Section 311 is to empower the Court to act in aid of justice by facilitating a holistic and comprehensive appreciation of facts, even in situations where a party to the proceedings has failed to produce material evidence. It is a procedural safeguard aimed at preventing failure of justice and ensuring that the adjudicatory process is not hamstrung by Page 7 of 9 Uploaded by MANISH MISHRA(HC01776) on Mon Aug 04 2025 Downloaded on : Mon Aug 04 21:42:23 IST 2025 NEUTRAL CITATION R/SCR.A/7948/2021 ORDER DATED: 31/07/2025 undefined technicalities or procedural lapses. However, the exercise of such power must be guided by judicial circumspection and a scrupulous regard for the integrity of the trial.
13. It is equally well-settled that the provision cannot be invoked as a subterfuge to fill up lacunae or to rectify strategic shortcomings by reintroducing evidence that was neither gathered during investigation nor forms part of the police report under Section 173 CrPC. The Court is duty-bound to guard against any abuse of this provision in the guise of furthering justice. The determinative test is not the convenience of a party, but whether the proposed evidence is indispensable to arrive at a just determination of the lis.
14. Adverting to the facts of the present case, the application at Exhibit-280, preferred by the de facto complainant, seeks the recall of P.W.-4, Shri Yogendrasinh Khumansinh Rathod, with a view to introducing into evidence certain photographs marked as Articles A to O. It is an admitted position that these photographs were never collected during the course of investigation and do not constitute part of the chargesheet. A plain reading of the police statement of the said witness recorded under Section 161 CrPC, as well as his examination-in-chief, reveals no assertion or claim that he had taken the said photographs.
15. It may also be pertinently noted that an earlier application at Exhibit-70, moved with the object of exhibiting the very same photographs, was rejected by the learned Sessions Court, and the said rejection was affirmed by this Court in Criminal Revision Application No. 323 of 2012, vide order dated 27.07.2012. Despite the authoritative pronouncement rendered therein, the complainant Page 8 of 9 Uploaded by MANISH MISHRA(HC01776) on Mon Aug 04 2025 Downloaded on : Mon Aug 04 21:42:23 IST 2025 NEUTRAL CITATION R/SCR.A/7948/2021 ORDER DATED: 31/07/2025 undefined has now sought, by way of the present application, to reopen the very same issue under the garb of Section 311 CrPC.
16. Such an attempt, in the considered opinion of this Court, amounts to an impermissible endeavour to circumvent the binding effect of judicial orders and to overreach the process of law. It is plainly manifest that the application at Exhibit-280 is a collateral attempt to reintroduce inadmissible material by clothing it with a semblance of procedural legitimacy. The said course not only undermines the sanctity of the trial but also militates against the very object and purpose of Section 311 CrPC.
17. In the totality of the circumstances, this Court finds no bona fides in the present petition, which is devoid of merit and constitutes an abuse of the process of the Court.
18. Accordingly, and in view of the foregoing discussion, the present petition stands DISMISSED. Rule / Notice, if any, is discharged. Interim relief granted earlier, if any, stands vacated.
(J. C. DOSHI,J) MANISH MISHRA Page 9 of 9 Uploaded by MANISH MISHRA(HC01776) on Mon Aug 04 2025 Downloaded on : Mon Aug 04 21:42:23 IST 2025