Sukhdevram @ Rakesh Madanlal Suthar vs State Of Gujarat

Gujarat High Court

Sukhdevram @ Rakesh Madanlal Suthar vs State Of Gujarat on 14 November, 2025

                                                                                                           NEUTRAL CITATION




                           R/CR.RA/2105/2025                                 ORDER DATED: 14/11/2025

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                                  IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/CRIMINAL REVISION APPLICATION (AGAINST ORDER PASSED BY
                                  SUBORDINATE COURT) NO. 2105 of 2025

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                                     SUKHDEVRAM @ RAKESH MADANLAL SUTHAR
                                                     Versus
                                            STATE OF GUJARAT & ANR.
                     ==========================================================
                     Appearance:
                     MR HN BRAHMBHATT(200) for the Applicant(s) No. 1
                     UTKARSH SHARMA APP for the Respondent(s) No. 1
                     ==========================================================

                        CORAM:HONOURABLE MR.JUSTICE P. M. RAVAL

                                                         Date : 14/11/2025

                                                           ORAL ORDER

1. Ld. Advocate Mr. S. V. Christian submits that he has instructions to appear in this matter for Respondent No. 2 and he will file his Vakalatnama during the course of the day.

2. Rule. Ld. APP waives service of Rule for Respondent No. 1 - State, and Ld. Advocate Mr. S. V. Christian waives service of Rule for Respondent No. 2.

3. Vide Exh. 26, the Application under the provisions of Section 349 of BNSS (Section 311 of CrPC) came to be preferred to recall PW-2 (Victim) on the ground that she is a material witness and on studying the cross-examination, various negligence, lapses, mistakes and material infirmity occurred while she was cross-examined by the previous advocate, which would prejudice the case of the accused.

NEUTRAL CITATION R/CR.RA/2105/2025 ORDER DATED: 14/11/2025 undefined The said Application came to be rejected by order dated 28.10.2025 passed by the Ld. Special Designated Judge, POCSO Court, Ankleshwar. As against the said order, the Applicant is before this Court.

4. On perusal of the impugned order Exh. 26 passed by the Ld. Special Designated Judge, POCSO Court, Ankleshwar, in Special POCSO Case No. 3/2025, it transpires that the Trial Court has noted to the effect that the Application is preferred under a misconception that the present Application has been filed by the Advocate and that the accused had appointed the earlier advocate as per his choice, and despite of granting ample opportunity for cross- examination, because of his inability to cross-examine he appointed a new advocate. The Court held that such a ground would not justify recalling the witness and therefore rejected the Application.

5. Ld. APP submits that once the material witness has been cross-examined by the earlier advocate, merely changing the advocate would not justify recalling the witness, more particularly when the opportunity of cross- examination had already been granted and the victim was examined by the earlier advocate. To fill up lacunae is not a ground to recall the witness and therefore the present Application deserves rejection.

6. Ld. Advocate for Respondent No. 2 submits that he has no objection if the present Application is allowed and the victim is recalled.

NEUTRAL CITATION R/CR.RA/2105/2025 ORDER DATED: 14/11/2025 undefined Ld. Advocate for the Applicant Mr. H. N. Brahmbhatt has relied on the judgments in Kiran Kantibhai Raval vs. State of Gujarat reported in 2012 (0) GLHEL-HC 228905 and Sanjay Jayantilal Patel vs. State of Gujarat reported in 2013 LawSuit (Guj) 1819 to buttress his argument that procedural provisions are the handmade of justice and that even change of advocate is a ground for recalling a witness if the witness has not been properly cross-examined earlier by the Advocate. He therefore prays for allowing the present Application.

7. Considering the facts and circumstances of the case, having gone through the impugned order and also the judgments in Kiran Kantibhai Raval (supra) and Sanjay Jayantilal Patel (supra), if the recalling of the victim as witness is not permitted and without affording the full opportunity to raise his defence to his satisfaction is not allowed, serious prejudice would be caused to the accused in the facts of the case, more particularly when the advocate has been changed, and thus, granting fair opportunity to accused to prove his innocence would be frustrated. Therefore, it would be appropriate to recall the victim so as to avoid any technical defence being raised by the accused during final argument. In such facts and circumstances, the Revision Application is allowed. The impugned order dated 28.10.2025 below Exh. 26 in Special POCSO Case No. 3/2025 passed by the Ld. Special Designated Judge, POCSO Court, Ankleshwar, is quashed and set aside. The victim is ordered to be recalled. The advocate for the Page 3 of 4 Uploaded by MR.MAHENDRA MOHANBHAI PUROHIT(HCD0074) on Sat Nov 15 2025 Downloaded on : Tue Nov 18 00:01:16 IST 2025 NEUTRAL CITATION R/CR.RA/2105/2025 ORDER DATED: 14/11/2025 undefined Applicant will cross-examine the victim at one go only. It is further made clear that no further opportunity of cross examining the advocate will be permitted, and the Applicant shall cross-examine the witness on the date fixed by the Trial Court, failing which no further opportunity shall be granted.

8. With the aforesaid observations, the matter stands disposed of accordingly. Direct service is permitted.

(P. M. RAVAL, J) MMP Page 4 of 4 Uploaded by MR.MAHENDRA MOHANBHAI PUROHIT(HCD0074) on Sat Nov 15 2025 Downloaded on : Tue Nov 18 00:01:16 IST 2025