Imran Karimbhai Madam vs State Of Gujarat
2022 Latest Caselaw 10133 Guj

      R/CR.RA/1232/2022                         ORDER DATED: 15/12/2022




      IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
     R/CRIMINAL REVISION APPLICATION NO. 1232 of 2022
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                IMRAN KARIMBHAI MADAM
                          Versus
                   STATE OF GUJARAT
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Appearance:
MR R D CHAUHAN(6865) for the Applicant(s) No. 1
MS.MANJULA R CHAUHAN(6871) for the Applicant(s) No. 1
MR UTKARSH SHARMA, APP for the Respondent(s) No. 1
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      CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
                          Date : 15/12/2022
                            ORAL ORDER

1. This revision application is filed challenging an order passed

below Exhibit-68 by the learned 7 th Additional Sessions Judge,

Rajkot, dated 02.06.2022, whereby application given on behalf of

the accused to recall the prosecution witness Nos. 5, 7 and 8 for

the purpose of cross-examination, came to be rejected.

2. Mr. R.D. Chauhan, learned advocate for the petitioner -

accused - Imran Karimbhai Madam, submitted that if the

prosecution witness Nos. 5, 7 and 8 are recalled, as important

questions were left out to be asked to them in a cross-

examination, there is no prejudice caused to the prosecution.

2.1 He has further submitted that even the petitioner - accused

is ready to pay the cost to the witnesses for the purpose of

recalling them for further cross-examination.

       R/CR.RA/1232/2022                       ORDER DATED: 15/12/2022




2.2     He has further submitted that by now, 12 prosecution

witnesses have been examined and there are 47 witnesses cited

in the charge-sheet, and therefore, trial has yet not concluded.

2.3 He has further submitted that even during the pendency of

this prosecution, petitioner - accused has been released on

temporary bail on several occasions and nothing untoward has

been reported, and therefore, there is no harm to recall the said

witnesses.

2.4 On the aforesaid submissions, he requested that this

revision application filed be admitted and allowed.

3. As against that, Mr. Utkarsh Sharma, learned APP,

submitted that recalling of a witness on the ground mentioned in

the application that certain important questions are left out to be

put to the witness during the course of cross-examination is no

ground to recall them. At the same time, according to him, to fill

up the lacuna, no witness can be recalled even at the instance of

the accused. Therefore, he has requested that this revision

application be rejected.

4. Having heard the learned advocate for the petitioner as

also the learned APP and going through the order, it appears that

prosecution witness Nos. 5, 7 and 8 were fully examined and

R/CR.RA/1232/2022 ORDER DATED: 15/12/2022

cross-examined to their satisfaction on 14.02.2019, 13.05.2019

and 17.07.2019. Even prosecution witness No. 5 was further

cross-examined on 21.02.2019, as his cross-examination was

deferred for a week on an application made on behalf of the

accused. Thus, it is clear that, to the fullest satisfaction of the

learned advocate representing the accused, all the three

witnesses for recall of whom this application is filed, were cross-

examined. Therefore, there is no question of recalling them, that

too, on an application made by the accused after approximately

two and a half years of their examination concluded before the

Court. Even giving benefit of Corona period, when Courts were

closed, it had already started physical hearing in the year 2020

itself, maybe it might have been closed again in the second phase

of Corona but thereafter also, physical hearing already started

much prior into November, 2022. At any rate, on the ground that

certain important questions were not put during the course of

cross-examination of those witnesses could not be a reason for

recalling those witnesses under Section 311 of the Code of

Criminal Procedure, 1973. The petitioner - accused is facing a

charge for an offence under Section 302 of the Indian Penal Code

along with other offences and the alleged incident had also taken

place much prior to their examination i.e. in the year 2019. It is

R/CR.RA/1232/2022 ORDER DATED: 15/12/2022

rightly concluded by the learned Judge that either to fill up lacuna

or with the change of an advocate, no witness can be recalled at

the instance of the accused.

5. A decision of the Supreme Court relied on by the learned

advocate for the petitioner in the case of Mohanlal Shamji Soni

v. Union of India, reported in 1991 (2) GLR 974, is of no help

to him as Supreme Court has said that Section 311 empowers the

Courts to invoke its power in this regard at any stage until the

judgment is pronounced but at the same time, it has also been

said that the power must be used judiciously and not capriciously

or arbitrarily. Since, as observed by the Sessions Court in para 3

of the impugned order that detailed cross-examination of each

witness running into 2 to 7 page is made, nothing was left out to

be asked to the witnesses. At any rate, the application given by

the petitioner - accused is also lacking in detail that which of

those important questions are left out to be asked to the witness

on recall. Not only that, as observed by the learned Judge,

thereafter also, prosecution witness Nos. 9 to 13 have also been

examined and the case is on the verge of completion.

5.1. Another decision of the Bombay High Court relied on by the

learned advocate for the petitioner, rendered in Criminal

Application No. 40 of 2014 decided on 22.04.2014, is on the

R/CR.RA/1232/2022 ORDER DATED: 15/12/2022

same principles as referred to in the aforesaid Supreme Court

decision. However, as observed by the Bombay High Court,

relying on a decision of the Supreme Court in the case of Natasha

Singh v. C.B.I. (State), reported in (2013) 5 SCC 741, for a

proposition that the dominant consideration to exercise

jurisdiction under Section 311 of the Code is, whether calling of a

witness was necessary for the just decision of a case. However,

petitioner has failed to show that without recalling the witnesses,

Court is unable to deliver the judgment. Not only that, what is left

out to be asked to the said witness is also not stated in the

application praying for recalling of those three witnesses.

6. In view thereof, even the decisions relied on by the learned

advocate for the petitioner in support of his case are also not

applicable in the facts of the present case. Hence, I see no reason

to entertain this revision application and it is hereby rejected.

(UMESH A. TRIVEDI, J.) Raj