Gujarat High Court

Dineshbhai Somabhai Khimsuriya vs State Of Gujarat on 29 June, 2021

Bench: Gita Gopi

      R/SCR.A/9258/2019                               ORDER DATED: 29/06/2021



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CRIMINAL APPLICATION NO. 9258 of 2019
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                          DINESHBHAI SOMABHAI KHIMSURIYA
                                       Versus
                                 STATE OF GUJARAT
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Appearance:
MR HARSHAD K PATEL(2844) for the Applicant(s) No. 1,2,3,4,5,6,7
MS. MONALI BHATT, ADDITIONAL PUBLIC PROSECUTOR(2) for the
Respondent(s) No. 1
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     CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                                  Date : 29/06/2021

                                   ORAL ORDER

1. The petition is filed under Article 226 of the Constitution of

India and under Section 482 of Criminal Procedure Code, 1973 with a

prayer to quash and set aside the order dated 17.7.2019 passed by the

learned Additional Sessions Judge, Bhavnagar at Mahuva on

application below Exh-174 in Sessions Case No. 237 of 2015 and

Sessions Case No. 262 of 2015 .

2. Mr. Manubhai Hamirbhai Chauhan has filed the FIR being C.R.

No. I-17/2011 with Jesar Police Station, District: Bhavnagar against the

petitioners for the offence punishable under Sections 363, 366, 376,

109, 120(B), 192, 193, 464, 465, 468, 471 and 114 of the IPC. Pursuant

to the FIR, petitioner Nos. 2 to 7 were arrested and charge-sheet was

filed. Since the case was triable by the Court of learned Sessions

Judge, the case was committed to the Sessions Court , Bhavnagar and

registered as Sessions Case No. 237 of 2015.

       R/SCR.A/9258/2019                            ORDER DATED: 29/06/2021



2.1     The Petitioner No.1 was enlarged on anticipatory bail and,

therefore, later on supplementary charge-sheet was filed against him.

Upon committal of the charge-sheet, Sessions Case No. 262 of 2015

was registered. Both the trials are before the learned Sessions Judge,

Bhavnagar at Mahuva.

3. Mr. Harshad Patel, learned advocate for the petitioners

submitted that the order below Exh-174 passed on 5.9.2018 in

Sessions Case No. 237 of 2015 and Sessions Case No. 262 of 2015 is

bad in law, as according to Mr. Patel, the same came to be granted

after the closing purshis, which was filed by the State, and stated that

further statement of the accused was recorded under Section 313 of

Cr.P.C. The matter was at the stage of argument. The application was

given by the State for re-opening their right of evidence. Mr. Patel

submitted that the petitioners are facing the trial for the last 8 years

and the application was filed with the intention of protracting trial

and fill up the lacuna and stated that such approach of the State

cannot be entertained, as every accused has a right to fair trial.

4. Ms. Monali Bhatt, learned APP, while referring to the

chargesheet and the list of witnesses, stated that the witnesses, which

were proposed to be examined, are cited as witnesses No. 19, 20 and

21. The accused are not taken by any surprise. The allegation is of

forging certificate and on the basis of the false certificate of birth and

R/SCR.A/9258/2019 ORDER DATED: 29/06/2021

hospital certificate, the marriage came to be registered.

5. Lalubhai Chhanabhai Chavda, witness No.19 is a Superintendent

in KK Hospital, who, as per the prosecution, is required to be examined

since false certificate showing age of the victim of 19 years has been

given by K.K. Hospital. Thus, the allegation is that the age of the victim

at the time of incident was 15 years but by false certificate from KK

Hospital, Savarkundla, the age was shown as of 19 years and,

therefore, witness No.19, the Superintendent of K.K.Hospital, is

required to be examined.

6. Witness No. 20 Harshidaben Babubhai Bajak, who is Talati-cum-

Mantri, and the allegation is of accused having kidnapped the

daughter of the complainant aged about 15 years, and the marriage

was registered and to that context, the witness was required to be

examined.

7. Witness No.21 Virendrabhai Dilipbhai Bhatt, is a person who has

alleged to have conducted the marriage ceremony, has put his

signature on marriage registration, as per his statement before the

Police. A copy of his Driving Licence was misused. It was urged by the

Additional Public Prosecutor in the Application Exh-174 that all those

persons have been cited as witnesses and their statements have been

recorded by the Police and statements have become part of the

chargesheet. Thus, the accused would have right to cross-examine the

R/SCR.A/9258/2019 ORDER DATED: 29/06/2021

witnesses and their examination in the Court would be in the interest

of justice.

8. The learned Additional Sessions Judge has allowed the

application of the State and has stated that the accused would not be

prejudiced by the examination of the witnesses and thus from the

grounds, the application was allowed where the learned Judge has

taken into consideration the provisions of Section 311 of Cr.P.C.

9. Section 311 of Cr.P.C. empowers the Court at any stage of

inquiry, trial or proceedings under this Code, summon any persons as a

witness or examine any person in attendance, though not summoned

as a witness or recall or re-examine any person in attendance though

not summoned as witness, or recall and re-examine any person already

examined, if his evidence appears to be essential for just decision.

Thus, it becomes crystal clear that the Court has been empowered to

summon any person as a witness at any stage of inquiry, trial or other

proceeding. It is settled law that if the conditions under Section 311

are satisfied the Court can call a witness not only on the motion of

either the prosecution or the defence but also it can do so in its even

motion and such person's evidence if it is found just for the case, the

Court has the power to examine such witness and further has the

power to recall any of such witness and can summon any witness even

if the evidence in both the sides is closed so long as the Court retains

R/SCR.A/9258/2019 ORDER DATED: 29/06/2021

Seisin of the criminal proceedings. Such opinion is expressed in the

case of Mohan Lal Shamlal Soni v. Union of India and Another,

reported in 1991 AIR 1346.

"It is a cardinal rule in the law of evidence that the best available evidence should be brought before the Court to prove a fact or the points in issue. But it is left either for the prosecution or for the defence to establish its respective case by adducing the best available evidence and the Court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their sides. Nonetheless if either of the parties with-holds any evidence which could be produced and which, if produced, be unfavorable to the party withholding such evidence, the court can draw a presumption under illustration (g) to Section 114 of the Evidence Act. In such a situation a question that arises for consideration is whether the presiding officer of a Court should simply sit as a mere umpire at a contest between two parties and declare at the end of combat who has won and who has lost or is there not any legal duty of his own, independent of the parties, to take an active role in the proceedings in finding the truth and administering justice? It is a well accepted and settled principle that a Court must discharge its statutory functions-whether discretionary or obligatory-according to law in dispensing justice because it is the duty of a Court not only to do justice but also to ensure that justice is being done. In order to enable the Court to find out the truth and render a just decision, the salutary provisions of Section 540 of the Code (Section 311 of the New Code) are enacted whereunder any Court by exercising its discretionary authority at any stage of enquiry, trial or other proceeding can summon any person as a witness or examine any person in attendance though not summoned as a witness or recall or re-examine any person in attendance though not summoned as a witness or recall and re-examine any person already examined who are expected to be able to throw light upon the matter in dispute; because if judgments happen to be rendered on inchoate, inconclusive and speculative presentation of facts, the ends of justice would be defeated.

10. Here in this case, the witnesses which the Additional Public

Prosecutor proposed to examine are the one who are being cited in

witness list of the charge-sheet. The accused are no taken by any

surprise. The Statement of these witnesses had become part of the

charge-sheet and so long as the trial Court is in seisin of the Criminal

R/SCR.A/9258/2019 ORDER DATED: 29/06/2021

proceedings even at the stage of final argument, the power under

Section 311 of Cr.P.C. could be invoked by the Court if it appears that

the evidence of these persons are essential for the just decision.

Prayer made by the Additional Public Prosecutor, even after filing the

closing purshis and later on after recording the further statement of

the accused under Section 313 of Cr.P.C, to examine the witness