Harishbhai Abhesing Baria vs State Of Gujarat
2021 Latest Caselaw 10347 Guj

      R/CR.RA/515/2021                       ORDER DATED: 03/08/2021




         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


         R/CRIMINAL REVISION APPLICATION NO. 515 of 2021

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                      HARISHBHAI ABHESING BARIA
                                 Versus
                            STATE OF GUJARAT
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Appearance:
MR JAYRAJ CHAUHAN(2966) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MR.J.K.SHAH, APP (2) for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI

                         Date : 03/08/2021

                           ORAL ORDER

[1] By way of present Criminal Revision Application under Section 397 of the Code of Criminal Procedure read with Section 311 of the Code of Criminal Procedure, the present applicant has challenged the legality and validity of an order dated 02.01.2021 passed below Exh.63 in Special Case No.44 of 2018 (POCSO) and prayed for grant of reliefs as prayed for in application at Exh.63.

[2] The case of the applicant is that a complaint came to be filed being FIR No.C.R.No.I-29 of 2018 registered with Rajgadh Police Station, Panchmahals for the offences punishable under Sections 363, 366, 376(D) and 114 of the Indian Penal Code read with Sections 4, 6 and 17 of the POCSO Act read with Section 3(1)(w)(i)(ii) and Section 3(2)(5) of the Atrocity Act in which the applicant is made as one of the co-accused.

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[3] As per the say of the complainant, while they were attending the marriage function at the house of Bhavsinhbhai who is close relative, the prosecutrix and her mother have also accompanied to attend the said marriage function and during that night, the people present were dancing on the DJ music. According to the complainant, the alleged incident occurred in the early morning hours between 3 to 4 AM on 11.05.2018. As per the further narration in the FIR, the prosecutrix had gone to attend the nature's call after informing her mother alongwith 3 other girls as named in the examination, from where, it is alleged that accused No.1 i.e. present applicant and accused No.2 had thrown her over the wall near school and have attempted to rape the prosecutrix and upon such occurrence of incident, the applicant was found on the scene and therefore, was caught hold by family members of the prosecutrix. The complainant belong to Rathwa community and accused are belonging to Baria community, they are scheduled tribe and hence, according to applicant, the Atrocity Act may not be applicable. However, during the course of examination, an application was given at Exh.63 on 24.12.2020 under Section 311 of the Cr.P.C. for permitting to examine Dr.Bhakti Gor, Gynecologist, Civil Hospital, Godhra, who conducted the physical examination of prosecutrix as well as accused and is a P.W.No.9 whose deposition was taken at Exh.29 and hence, for the purpose of examination, a request is made to examine Dr.Bhakti Gor, as stated above. Simultaneously, a further request is made to cross-examine further the prosecution witness i.e. mother

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Gosliben as well as P.S.I. - Mr.Kiritkumar Vinodbhai Patel who was examined as P.W.10 at Exh.33 and hence, a summons be issued and this application was submitted alongwith another application at Exh.62 and both were clubbed and got decided by an order dated 02.01.2021 passed by the learned Additional Session Judge, Godhra a Special Judge (POCSO) who was pleased to allow Exh.63 application in part by permitting Dr.Bhakti Gor to be examined further who conducted the physical examination of prosecutrix and so far as prosecution witness No.2 Gosliben Rameshbhai Gamirbhai Rathva was already examined at Exh.11 and P.W.10 Kiritkumar Vinodbhai Patel examined at Exh.33, a request came to be rejected and in view of the order passed, Exh.62 application came to be disposed of and it is this order passed by the learned Special Judge (POCSO) and Additional Sessions Judge, Godhra is made the subject matter of present Revision Application under Section 397 of the Criminal Procedure Code.

[4] Mr.Jayraj Chauhan, learned advocate appearing for the applicant has submitted that the learned Judge has passed an order not keeping in view the well settled proposition of law on the issue of Section 311 of the Cr.P.C. and keeping the said proposition in mind, the Investigating Officer as well as mother of the prosecutrix ought to have been allowed to be re-examined. At the best, according to Mr.Chauhan, learned advocate alternatively even at least Investigating Officer ought to have been allowed to be re-examined. Hence, the order under challenged is illegal, not tenable in the eye of law

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and deserves to be corrected by granting full relief, as prayed for in Exh.63 application.

[4.1] To substantiate his submission, Mr.Chauhan, learned advocate has referred to and relied upon the following decisions on the issue and reiterated that the order passed by the Court below deserves to be quashed and set aside. Such decisions are narrated in grounds No. f to l and following are the citations:

        (a)     1991 Suppl (1) SCC 271.
        (b)     AIR 2012 SC 2242
        (c)     2013 AIR SCW 3554.
        (d)     2015(2) GLR 1320.
        (e)     1993 CR.L.J. 159.
        (f)     2006 (7) SCC 529.
        (g)     AIR 2007 SC 3029.

By referring the aforesaid decisions, Mr.Chauhan, learned advocate has reiterated his submission that case is made out by the applicant to call for an interference and as such the impugned order deserves to be set aside. No other submissions have been made.

[5] To these submissions, Mr.J.K.Shah, learned APP has vehemently opposed the Revision Application on the ground that it is settled position of law that just with a view to fill-up the lacuna, no re-examination is permitted and i.e. not the object of Section 311 of the Cr.P.C. It has been further contended that learned trial Judge has assigned proper reason in exercise of discretion vested in

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him and as such in revisional jurisdiction such views are may not to be substituted even if another view is possible in the absence of any patent illegality for defect in the order.

[5.1] Mr.Shah, learned APP has further submitted that Dr.Bhakti Gor has already been examined as defense witness but even then the Court permitted to re-examine of her and as such in the interest of justice, a balance is struck by the learned Special Judge. Hence, the exercise of jurisdiction undertaken is may not be interfered with. Additionally, Mr.Shah, learned APP has submitted that the prosecution witnesses i.e. Kiritkumar Vinodbhai Patel was long back examined as P.W.10 whereas the mother of the prosecutrix as P.W.2 Gosliben has also been examined at Exh.11 and there is no other material circumstance which may permit the applicant to re-examine simply because there is a change in the lawyer, the witnesses who have already been examined and cross-examined and whose evidence is closed long back cannot be re-examined further and i.e. not the purport of Section 311 of the Cr.P.C. The learned Special Judge while passing the order has satisfied himself on the basis of record that there is no justification in granting Exh.63 in its full effect. As a result of this, the order passed by the Court below does not call for any interference and in any case, the material witness i.e. Medical Officer is allowed to be examined for which the summon is already issued. That being the position i.e. hardly any case made out by the applicant to call for any interference.

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[6] Having heard learned advocates appearing for the respective parties and having gone through the material placed on record, it appears that P.W.2 - Gosliben Rameshbhai Gamirbhai Rathva was already examined at Exh.11 and was cross-examined as well and the same is the case with another prosecution witness No.10 was examined whose examination is concluded while Exh.33 and it further appears that this application has been given after change of a lawyer and as such it is not found to be a just reason for allowing recall of the witnesses by exercising power under Section 311 of the Cr.P.C.

[7] It further appears that one Medical Officer has already been examined as P.W.8 Dr.Parash Patel whose examination and cross-examination was already over way back in September, 2019 alongwith him one another Medical Officer has already been examined one Sandip Sharma as P.W.9 whose deposition is also concluded in September, 2019. In the said breath in December, 2019 even Principal of Ambalal Primary School, Kalol has also been examined.

[8] Additionally, P.W.2 the mother of prosecutrix which is sought to be re-examined whose evidence is also concluded at Exh.11 way back in June, 2019 and it appears further that Kiritkumar Vinodbhai Patel prosecution witness No.10 who is also sought to be re- examined whose evidence is also concluded way back in September, 2019 and from the record, it appears that he has been cross-examined as well. From the record, it appears that trial has reached at a particular stage where

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after change of a lawyer by the applicant, this application Exh.63 appears to have been given on 24.12.2020 and upon examination of overall material as indicated above, the same came to be partly allowed by assigning proper reasons and as such in view of aforesaid situation which is prevailing on record, it is not possible for this Court to hold that order under challenge is perverse in any form nor is suffering in patent defect of any irregularity.

[9] Now, in the aforesaid situation, which is visible from the record on analysis of Section 311 of the Cr.P.C. read with Section 482, the Hon'ble Apex Court in the case of State of Haryana versus Ram Mehar and others reported in AIR 2016 SC 3942 has dealt with an issue of recalling of witness and few observations contained in the said decision since are relevant to the issue, the Court deems it proper to reproduce the same hereunder:

37. There is a definite purpose in referring to the aforesaid authorities. We are absolutely conscious about the factual matrix in the said cases. The observations were made in the context where examination-in- chief was deferred for quite a long time and the procrastination ruled as the Monarch. Our reference to the said authorities should not be construed to mean that Section 311 CrPC should not be allowed to have its full play. But, a prominent one, the courts cannot ignore the factual score. Recalling of witnesses as envisaged under the said statutory provision on the grounds that accused persons are in custody, the prosecution was allowed to recall some of its witnesses earlier, the counsel was ill and magnanimity commands fairness should be shown, we are inclined to think, are not acceptable in the obtaining factual matrix. The decisions which have used the words that the court should be magnanimous, needless to give special emphasis, did not mean to convey individual generosity or magnanimity which is founded on any kind of fanciful notion. It has to be applied on the basis of judicially established and accepted principles. The approach may be liberal but that does not necessarily mean "the liberal approach" shall be the rule and all other parameters shall become exceptions. Recall of some witnesses by the prosecution at one point of time, can never be ground to

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entertain a petition by the defence though no acceptable ground is made out. It is not an arithmetical distribution. This kind of reasoning can be dangerous. In the case at hand, the prosecution had examined all the witnesses. The statements of all the accused persons, that is 148 in number, had been recorded under Section 313 CrPC. The defence had examined 15 witnesses. The foundation for recall, as is evincible from the applications filed, does not even remotely make out a case that such recalling is necessary for just decision of the case or to arrive at the truth. The singular ground which prominently comes to surface is that the earlier counsel who was engaged by the defence had not put some questions and failed to put some questions and give certain suggestions. It has come on record that number of lawyers were engaged by the defence.

The accused persons had engaged counsel of their choice. In such a situation recalling of witnesses indubitably cannot form the foundation. If it is accepted as a ground, there would be possibility of a retrial. There may be an occasion when such a ground may weigh with the court, but definitely the instant case does not arouse the judicial conscience within the established norms of Section 311 CrPC for exercise of such jurisdiction. It is noticeable that the High Court has been persuaded by the submission that recalling of witnesses and their cross- examination would not take much time and that apart, the cross-examination could be restricted to certain aspects. In this regard, we are obliged to observe that the High Court has failed to appreciate that the witnesses have been sought to be recalled for further cross-examination to elicit certain facts for establishing certain discrepancies; and also to be given certain suggestions. We are disposed to think that this kind of plea in a case of this nature and at this stage could not have been allowed to be entertained.

38. At this juncture, we think it apt to state that the exercise of power under Section 311 CrPC can be sought to be invoked either by the prosecution or by the accused persons or by the Court itself. The High Court has been moved by the ground that the accused persons are in the custody and the concept of speedy trial is not nullified and no prejudice is caused, and, therefore, the principle of magnanimity should apply. Suffice it to say, a criminal trial does not singularly centres around the accused. In it there is involvement of the prosecution, the victim and the victim represents the collective. The cry of the collective may not be uttered in decibels which is physically audible in the court premises, but the Court has to remain sensitive to such silent cries and the agonies, for the society seeks justice. Therefore, a balance has to be struck. We have already explained the use of the words "magnanimous approach" and how it should be understood. Regard being had to the concept of balance, and weighing the factual score on the scale of balance, we are of the convinced opinion that the High Court has fallen into absolute error in axing the order passed by the learned trial Judge. If we allow ourselves to say, when the

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concept of fair trial is limitlessly stretched, having no boundaries, the orders like the present one may fall in the arena of sanctuary of errors. Hence, we reiterate the necessity of doctrine of balance.

[10] From the overall reading of the contents of record and the reasons assigned, the facts are such in which the balance is struck by the learned trial Judge and the witness which has been found to be proper in the interest of justice by allowing the application in part the examination is allowed to the extent which has been provided in the order and therefore, the Court see no reason to interfere with the impugned order.

[11] Since the facts are peculiar in nature, as stated above, the Court going through the decisions which have been cited by the learned advocate for the applicant found that in the said decisions facts are quite distinct then from the case on hand and therefore, the ratio which have been laid down by those decisions may not be applied as a straightjacket formula and as such having gone through the said decisions, the Court is of the opinion that the same may not be of any assistance to the applicant.

[12] It is settled principle of law on the issue of precedent that if the facts are different even one additional fact would make a world of difference in applying the principle and as such keeping the said proposition of law in mind propounded by the Hon'ble Apex Court in a decision in the case of Gian Chand vs. State of Haryana reported in (2013) 14 SCC 420, this Court is of the opinion that the judgments cited are not helpful to the applicant. Hence, relevant observation, more particularly in para:24, is quoted herein after:

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"24. So far as the judgment in Avtar Singh [(2002) 7 SCC 419] is concerned, it has been considered by this Court in Megh Singh vs. State of Punjab [(2003) 8 SCC 666]. The Court held that the circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases or between tow accused in the same case. Each case depends on its own facts and a close similarity between one case and another is not enough because a single significant detail may alter the entire aspect. It is more pronounced in criminal cases where the backbone of adjudication is fact based."

[13] Now, in the context of aforesaid proposition of law, the scope of revision is also cannot be ignored by the Court while testing legality and validity of the order under challenged. The Hon'ble Apex Court while dealing with the scope of revision under Section 397 of the Cr.P.C. in the case of State of Rajasthan versus Fatehkaran Mehdu reported in (2017) 3 SCC 198 has observed like this and since the Court has considered the same relevant paragraphs, the Court deems it proper to reproduce hereunder:

27. Now, reverting to the limit of the scope of jurisdiction under Section 397 Cr. P.C., which vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law or the perversity which has crept in the proceeding.

28. It is useful to refer to judgment of this Court in Amit Kapoor and Ramesh Chander and Another, (2012) 9 SCC 460, where scope of Section 397 Cr. P.C. have been succinctly considered and explained. Para 12 and 13 are as follows:

"12. Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error and it may not be appropriate for the court to scrutinize the orders, which upon the face of it

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bears a token of careful consideration and appear to be in accordance with law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits." "13. Another well-accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it should not be against an interim or interlocutory order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex facie. Where the Court is dealing with the question as to whether the charge has been framed properly and in accordance with law in a given case, it may be reluctant to interfere in exercise of its revisional jurisdiction unless the case substantially falls within the categories aforestated. Even framing of charge is a much advanced stage in the proceedings under the CrPC."

29. The Court in para 27 has recorded its conclusion and laid down principles to be considered for exercise of jurisdiction under Section 397 particularly in context of quashing of charge framed under Section 228 Cr. P. C. Para 27, 27(1), (2), (3), (9), (13) are extracted as follows:

"27. Having discussed the scope of jurisdiction under these two provisions, i.e., Section 397 and Section 482 of the Code and the fine line of jurisdictional distinction, now it will be appropriate for us to enlist the principles with reference to which the courts should exercise such jurisdiction. However, it is not only difficult but is inherently impossible to state with precision such principles. At best and upon objective analysis of various judgments of this Court, we are able to cull out some of the principles to be considered for proper exercise of jurisdiction, particularly, with regard to quashing of charge either in exercise of jurisdiction under Section 397 or Section 482 of the Code or together, as the case may be:

27.1) Though there are no limits of the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases.

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27.2) The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere.

27.3) The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge.

27.9) Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the Court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice. 27.13) Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie."

[14] From the aforesaid position prevailing on record and keeping in view the proposition of law laid down as discussed above, this Court is of the opinion that no case is made out to call for any interference. Accordingly, the Revision Application being devoid of merit, stands dismissed. It is observed while parting with the present order that the observations made by the Court are in the context of present controversy only and the trial Court shall not be influenced by the same while taking a particular decision in the main case.

(ASHUTOSH J. SHASTRI, J.) DHARMENDRA KUMAR