Gujarat High Court
Malek Arbaz @ Bapji Salimbhai vs State Of Gujarat on 7 July, 2025
NEUTRAL CITATION
R/CR.RA/24/2025 ORDER DATED: 07/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (AGAINST ORDER PASSED BY
SUBORDINATE COURT) NO. 24 of 2025
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MALEK ARBAZ @ BAPJI SALIMBHAI
Versus
STATE OF GUJARAT
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Appearance:
MR. SOEB R. BHOHARIA(2205) for the Applicant(s) No. 1
VALIMOHAMMED PATHAN(6383) for the Applicant(s) No. 1
MS. JYOTI BHATT APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR.JUSTICE L. S. PIRZADA
Date : 07/07/2025
ORAL ORDER
1. Rule. Learned APP waives service for the respondent
- State.
2. Heard the learned advocate for the applicant and by way of filing revision application, he has challenged the order passed by the learned Additional Sessions Judge, Mahesana in Sessions Case No.11 of 2020 passing an order below Exhibit-457, moved by the learned APP to recall two witnesses, investigating Officer Witness No.93 G.S. Patel and Witness No.95 - O.M. Desai, for the purpose of contradicting the two defense witnesses who Page 1 of 9 Uploaded by MR.JAIMIN CHANDRAKANTBHAI PRAJAPATI(HCD0066) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:51:12 IST 2025 NEUTRAL CITATION R/CR.RA/24/2025 ORDER DATED: 07/07/2025 undefined have been cited as prosecution witnesses in the charge sheet, but not examined by the prosecution and the order passed by the learned Trial Court on 30.11.2024 as calling two defense witnesses to contradict regarding that the police statement recorded under Section 161 of the Cr.P.C.
3. It is submitted by him that the present case in hand is concerned after the Sessions Case No.41 of 2020 and Sessions Case No.09 of 2020 after the completion of the evidence of the prosecution side, the accused has examined 8 witnesses as defense witnesses and more particularly, defense witness no.2 - Mohammedmunaf Chhotumiya Chishti was being examined vide Exhibit-428 and defense witness no.7 - Mr. Sarfraz Mahammadbhai Pinjara (Mansuri) vide Exhibit-454 and the statement before the police has been recorded under section 161 of the Cr.P.C. Subsequently, an application has been moved by the learned APP vide Exhibit-457 under the provisions of Section 311 of the Code of Criminal Procedure to recall two investigating officers. Learned Trial Court has passed Page 2 of 9 Uploaded by MR.JAIMIN CHANDRAKANTBHAI PRAJAPATI(HCD0066) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:51:12 IST 2025 NEUTRAL CITATION R/CR.RA/24/2025 ORDER DATED: 07/07/2025 undefined an order dated 12.11.2024 only, partly allowed, and only recalled the investigating officer O.M. Desai for the purpose of contradicting these two defense witnesses regarding their police statement.
4. Further, it is submitted that the defense witness cannot be contradicted by adopting this type of practice. Further, in support of his argument, learned Advocate has relied upon the judgment of the Hon'ble Apex Court in the case of Mrs. Shakila Khader etc. Vs. Nausher Gama and another reported in AIR 1975 Supreme Court 1324 and Hon'ble Apex Court in the case of Tahsildar Singh and another Vs. State of U.P. reported in AIR 1959 Supreme Court 1012 and has submitted that the order passed by the learned Sessions Court is required to be set aside. Further, it is submitted that after the order has been passed, both the witnesses have been called and they have been shown the police statement during the pendency of the revision application, and they have been contradicted in the witness evidence. Page 3 of 9 Uploaded by MR.JAIMIN CHANDRAKANTBHAI PRAJAPATI(HCD0066) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:51:12 IST 2025
NEUTRAL CITATION R/CR.RA/24/2025 ORDER DATED: 07/07/2025 undefined
5. Both Investigating Officers have also been examined and this Order of the learned Additional Sessions Judge allowing the application under Section 311 of the Cr.P.C for contradicting defense witnesses has also recorded the contradictions of these two defense witnesses by putting a question to them by showing their statement under Section 161 of the Cr.P.C and also recorded that contradiction in the evidence itself is against the settled principles of law and the evidence is to be discarded and the order passed is to be set aside.
6. On the other hand, Learned APP submitted that the order passed by the learned Sessions Judge is just and proper, exercise of power under Section 311 of the Cr.P.C is for just decision of the case, and learned Trial Court has all the power to call any witness to clear the doubt and for finding out the truth for the justification. Hence, the present revision application is devoid of the merits and is required to be rejected.
7. Heard the learned advocates for the respective Page 4 of 9 Uploaded by MR.JAIMIN CHANDRAKANTBHAI PRAJAPATI(HCD0066) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:51:12 IST 2025 NEUTRAL CITATION R/CR.RA/24/2025 ORDER DATED: 07/07/2025 undefined parties. The present case in hand is concerned, it is an admitted position that there is Sessions Case No.41 of 2022 and Sessions Case No.9 of 2021, these two witnesses were examined by the defense side as Defense Witness No.2 and Defense Witness No.7 respectively. Further, it is pertinent to note here that these both witnesses have been cited in the charge sheet as prosecution witnesses, but the prosecution chose not to examine them. Thereafter, they have been examined by the defense side as defense witnesses. Further, from the evidence of these two witnesses, it is transpired that after the examination-in-chief of these two witnesses are over, learned APP has not shown any statement to put question on the cross-examination, and subsequently an application under Section 311 of the Cr.P.C was preferred to call two investigating officers for the purpose of contradiction is to defense witnesses. Against them, police statement recorded during the investigation.
8. It is settled principle of law that Court witnesses and defense witnesses cannot be contradicted regarding the Page 5 of 9 Uploaded by MR.JAIMIN CHANDRAKANTBHAI PRAJAPATI(HCD0066) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:51:12 IST 2025 NEUTRAL CITATION R/CR.RA/24/2025 ORDER DATED: 07/07/2025 undefined statement under Section 161 of the Cr.P.C. Further, from the plain reading of Section 162 of the Cr.P.C, it is clear that as per the proviso of Section 162 of the Cr.P.C, when any witness has been called for the prosecution in such an inquiry or trial and statement has been reduced in writing, then it can be used by the accused with permission of the Court or by the prosecution to contradict such witnesses in the manner provided under Section 145 of the Indian Evidence Act.
9. So far as the present case in hand is concerned, it is an admitted position that these two witnesses have never been examined by the prosecution, but they have been examined as defense witnesses. Further, as per the judgment of the Mrs. Shakila Khader etc. Vs. Nausher Gama (Supra) has been read by the Hon'ble Apex Court under Section 162 of the Cr.P.C, only witness on behalf of the prosecution could be contradicted by reference to their statement made to the police and not Court witnesses or defence witnesses even so in the circumstances, all these case is evidence, more or less, Page 6 of 9 Uploaded by MR.JAIMIN CHANDRAKANTBHAI PRAJAPATI(HCD0066) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:51:12 IST 2025 NEUTRAL CITATION R/CR.RA/24/2025 ORDER DATED: 07/07/2025 undefined similar to the evidence cannot be accepted and as per the judgment of the Tahsildar Singh and another Vs. State of U.P. (Supra), "17 At the same time, it being the earliest record of the statement of a witness soon after the incident, any contradiction found therein would be of immense help to an accused to discredit the testimony of a witness making the statement. The section was, therefore, conceived in an attempt to find a happy via media, namely, while it enacts an absolute bar against the statement made before a police- officer being used for any purpose whatsoever, it enables the accused to rely upon it for a limited purpose of contradicting a witness in the manner provided by s. 145 of the Evidence Act by drawing his attention to parts of the statement intended for contradiction. It cannot be used for Page 7 of 9 Uploaded by MR.JAIMIN CHANDRAKANTBHAI PRAJAPATI(HCD0066) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:51:12 IST 2025 NEUTRAL CITATION R/CR.RA/24/2025 ORDER DATED: 07/07/2025 undefined corroboration of a prosecution or a defence witness or even a Court witness. Nor can it be used for contradicting a defence or a Court witness. Shortly stated, there is a general bar against its use subject to a limited exception in the interest of the accused, and the exception cannot obviously be used to cross the bar."
10. From the aforesaid judgment of the Hon'ble Apex Court, it is clear that statement recorded during the investigation by the police cannot be used for corroboration of prosecution or defense witness or even Court witness nor can be used for contradicting the defense witness or Court witness. Considering this, it is settled principal law that defense cannot be contradicted regarding their statement under Section 161 of the Cr.P.C and by calling the investigating officer for recalling the witnesses as defense witnesses nos. 2 and 7 to show their statements and then by putting the question Page 8 of 9 Uploaded by MR.JAIMIN CHANDRAKANTBHAI PRAJAPATI(HCD0066) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:51:12 IST 2025 NEUTRAL CITATION R/CR.RA/24/2025 ORDER DATED: 07/07/2025 undefined to the investigating officer and try to contradict these two witness's statement recorded under Section 161 of the Cr.P.C. is totally against the settled principle of law. Hence, considering this, the present revision application requires consideration.
11. The order passed by the learned Additional Sessions Judge in Sessions Case No. 41 of 2020 and Sessions Case No. 9 of 2021 passes an order dated below Exh.457 dated 12.11.2024 and order passes on 30.11.2024 recalling these two defense witnesses i.e. Defense Witness No.2 and Defense Witness No.7 by the Court to show them their statement recorded by the investigating officer and putting questions and also calling the two investigating is hereby quashed and set aside and if any contradictions of any of the prosecution witnesses has been recorded, the same be expunged from the record.
12. Rule made absolute. Direct Service is permitted.
(L. S. PIRZADA, J) JCP Page 9 of 9 Uploaded by MR.JAIMIN CHANDRAKANTBHAI PRAJAPATI(HCD0066) on Wed Jul 09 2025 Downloaded on : Wed Jul 09 21:51:12 IST 2025