Paresh Parshottamdas Patel vs State Of Gujarat
2022 Latest Caselaw 5346 Guj

      R/SCR.A/6284/2022                                 ORDER DATED: 22/06/2022


             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CRIMINAL APPLICATION NO. 6284 of 2022
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                          PARESH PARSHOTTAMDAS PATEL
                                     Versus
                               STATE OF GUJARAT
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Appearance:
MR VICKY B MEHTA(5422) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MS MOKSHA THAKKAR, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE NIRAL R. MEHTA

                              Date : 22/06/2022
                                ORAL ORDER

1. By way of this Special Criminal Application, the petitioner who was an accused, has prayed for following reliefs.

"(B) Your Lordships may be pleased to issue a writ of Certiorari or a writ in the nature of Certiorari or any other appropriate writ, order or direction, quashing and setting aside the common order dated 25.2.2022 passed by learned 22 nd Additional Senior Civil Judge and Additional Chief Judicial Magistrate, Vadodara passed below Exh.30 and 32 in Criminal Case No.39537 of 2012 and further be pleased to reject the application filed by the prosecutor at Exh.30;

(C) Pending admission, hearing and final disposal of this petition, Your Lordships may be pleased to stay the implementation, execution and operation of the common order dated 25.2.2022 passed by the learned 22 nd Additional Senior Civil Judge and Additional Chief Judicial Magistrate, Vadodara passed below Exh.30 and 32 in Criminal Case No.39537 of 2012;"

2. The short facts which can be gathered from the available record, can be stated as under.

2.1 A F.I.R. being C.R. No.I-20 of 2012 dated 10 th February, 2012 came to be registered at Chhani Police Station, District Vadodara City for the offences punishable under Sections 279, 337, 228, 304(A) of the Indian Penal Code read with Sections 119, 177, 184 and 134 of the Motor Vehicles Act

R/SCR.A/6284/2022 ORDER DATED: 22/06/2022

against the driver of the Maruti Van being Registration No.GJ- 17-C-1976. After the investigation, the investigating agency has filed chargesheet against the present petitioner before the competent court.

2.2 After filing of the chargesheet, Criminal Case No.39537 of 2012 came to be registered before learned Judicial Magistrate First Class, Vadodara.

2.3 During the course of trial, various witnesses came to be examined including that of Investigating Officer. At Exh.20, the Investigating Officer viz. Rajendrasinh Dilawarsinh came to be examined, in which in his examination-in-chief, the Investigating Officer stated vehicle number as GJ-17-C-1970. The said examination and cross-examination was completed on 17th February, 2020.

2.4 Thereafter learned Additional Public Prosecutor moved an application under Section 311 of the Code of Criminal Procedure for recalling the Investigating Officer on 30 th September, 2020. It appears that the complainant has also filed an affidavit at Exh.32 dated 04 th October, 2021 supporting the application filed by learned Additional Public Prosecutor. The present applicant has also filed his written objections/ submissions at Exh.37.

2.5 Learned 22nd Additional Senior Civil Judge & Additional Chief Judicial Magistrate, Vadodara, after having heard learned advocates for the respective parties, passed common order dated 25th February, 2022 below Exh.30 and 32 allowing the said applications for recall.

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2.6 At this stage, it is required to be noted that learned Additional Chief Judicial Magistrate while allowing the said application has in no uncertain terms, clarified that recalling of Investigating Officer is for the limited purpose with regard to resolve the ambiguity of a car number only.

3. However, being aggrieved by the aforesaid, the petitioner has approached this Court by way of present Special Criminal Application challenging the impugned order.

4. I have heard learned advocate Mr.Vicky B. Mehta for the petitioner and learned Additional Public Prosecutor Ms.Moksha Thakkar for the respondent - State.

4.1 Learned advocate for the petitioner submitted that the impugned order passed by the learned Judge is not justified and is against the purpose and ambit of Section 311, Cr.P.C. Learned advocate submitted that application under Section 311 came to be filed after a period of one-and-half-years and for which no plausible explanation is given and thereby, according to learned advocate, the application is filed at a belated stage that too after fag end of the trial, recalling of witness is not permissible. Learned advocate for the petitioner further submitted that the application filed under Section 311 of the Code is only with a view to fill up the lacuna and thereby it would be prejudicial to the defence of the accused.

4.2 To strengthen the aforesaid contention, learned advocate has relied on the following judgments - (i) Rajaram Prasad Yadav v. State of Bihar [(2013) 14 SCC 461], (ii) Swapan Kumar Chatterjee v. Central Bureau of Investigation [(2019) 14 SCC 328] and (iii) Kauntey Shivkumar Sharma v.

R/SCR.A/6284/2022 ORDER DATED: 22/06/2022

State of Gujarat [2012 (3) GCD 2161].

4.3 Per contra, learned Additional Public Prosecutor has vehemently opposed the present petition contending that the order impugned is perfectly justified within the four corners of law. She further submitted that while passing the impugned order the learned Judge has applied his mind and thereby discretion used in judicious manner. According to learned Additional Public Prosecutor the order passed by the learned Magistrate is just and fair. Learned Additional Public Prosecutor further submitted that the learned Magistrate has also clarified that the purpose of recalling of Investigating Officer is limited to the extent of identity of the vehicle only and thereby, according to learned Additional Public Prosecutor, there cannot be any prejudice to the defence of the accused at this stage.

4.4 By making above submissions, learned Additional Public Prosecutor submitted that the petition be dismissed.

5. Having heard learned advocates for the respective parties and having gone through the record made available, the short question falls for consideration of this Court is whether the order passed by learned Judge recalling of witness under Section 311, Cr.P.C. is justified?

6. So as to answer the aforesaid question, it would be apt to refer to and rely upon the proposition laid down by the Apex Court in the case of V.N. Patil v. K. Niranjan Kumar [(2021) 3 SCC 661], relevant paras of which read thus.

"13. The scope of Section 311 CrPC which is relevant for the present purpose is reproduced hereunder:

"311. Power to summon material witness, or examine

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person present--Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case."

14. The object underlying Section 311 CrPC is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The significant expression that occurs is "at any stage of any inquiry or trial or other proceeding under this Code". It is, however, to be borne in mind that the discretionary power conferred under Section 311 CrPC has to be exercised judiciously, as it is always said "wider the power, greater is the necessity of caution while exercise of judicious discretion."

15. The principles related to the exercise of the power under Section 311 CrPC have been well settled by this Court in Vijay Kumar Vs. State of Uttar Pradesh and Another 2011(8) SCC

136.

"17. Though Section 311 confers vast discretion upon the court and is expressed in the widest possible terms, the discretionary power under the said section can be invoked only for the ends of justice. Discretionary power should be exercised consistently with the provisions of the Code and the principles of criminal law. The discretionary power conferred under Section 311 has to be exercised judicially for reasons stated by the court and not arbitrarily or capriciously. Before directing the learned Special Judge to examine Smt Ruchi Saxena as a court witness, the High Court did not examine the reasons assigned by the learned Special Judge as to why it was not necessary to examine her as a court witness and has given the impugned direction without assigning any reason."

16. This principle has been further reiterated in Mannan Shaikh and Others Vs. State of West Bengal and Another 2014(13) SCC 59 and thereafter in Ratanlal Vs. Prahlad Jat and Others 2017(9) SCC 340 and Swapan Kumar Chatterjee Vs. Central Bureau of Investigation 2019(14) SCC 328. The relevant paras of Swapan Kumar Chatterjee(supra) are as under:

"10. The first part of this section which is permissive gives purely discretionary authority to the criminal court and enables it at any stage of inquiry, trial or other

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proceedings under the Code to act in one of the three ways, namely, (i) to summon any person as a witness; or (ii) to examine any person in attendance, though not summoned as a witness; or (iii) to recall and reexamine any person already examined. The second part, which is mandatory, imposes an obligation on the court (i) to summon and examine or (ii) to recall and reexamine any such person if his evidence appears to be essential to the just decision of the case.

11. It is well settled that the power conferred under Section 311 should be invoked by the court only to meet the ends of justice. The power is to be exercised only for strong and valid reasons and it should be exercised with great caution and circumspection. The court has vide power under this section to even recall witnesses for reexamination or further examination, necessary in the interest of justice, but the same has to be exercised after taking into consideration the facts and circumstances of each case. The power under this provision shall not be exercised if the court is of the view that the application has been filed as an abuse of the process of law."

17. The aim of every Court is to discover the truth. Section 311 CrPC is one of many such provisions which strengthen the arms of a court in its effort to unearth the truth by procedure sanctioned by law. At the same time, the discretionary power vested under Section 311 CrPC has to be exercised judiciously for strong and valid reasons and with caution and circumspection to meet the ends of justice."

6.1 Keeping in mind the aforesaid proposition of law, it appears that the entire purport of Section 311, Cr.P.C. is to ensure that there shall not be failure of justice because of any mistake by either of the parties and/or ambiguity in the statement etc. Furthermore, Section 311, Code, is enacted with a loud object of arriving a just decision.

6.2 Keeping in mind the aforesaid, it is necessary to examine the findings recorded by the learned trial court while allowing recalling of the witness which can be thus extracted.

"6. The power conferred under section 311 of Cr.P.C. should be invoked by the court to meet the ends of justice, to find out the truth and render just decision. I am aware that this

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power should be used sparingly with an object to discover the relevant facts and obtained the proper proof of facts. The I.O. in the present case is required to be recalled in order to reach at the just decision of the case. It will not fill up any kind of lacuna but will clarify the ambiguity on record. I am bound by the judgment of Zahir Shaikh v/s. State of Gujarat, 2004 (4) SCC 158 in this regard and I also place my reliance on the ratio laid down by the Hon'ble High Court of Gujarat in the case of State v/s. Indirakumar, 2003 (3) GCD Gujarat 2290 wherein it has been held that no fixed rules can be laid down in the matter, as the interest of justice must be considered paramount.

7. On the basis of above discussion, this Court is of the opinion that, the I.O. is required to be examined again only pertaining to this limited issue of car number. The Ld. Advocate for the accused will get a fair chance to cross-examine the I.O. on this point. Hence, in the larger interest of justice, I pass the following order."

7. In view of the aforesaid, in my considered opinion, recalling of a witness i.e. Investigating Officer by the learned Additional Chief Judicial Magistrate is for a limited purpose only with a view to clear the ambiguity with regard to number of vehicle involved in the accident. As laid down by the Apex Court in the case of V.N. Patil (supra), the object underlined under Section 311, Code, is that there should not be failure of justice on account of mistake of either party in bringing evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. In the instant case, said witness in different proceedings i.e. one in the trial and one in the proceedings before Motor Accident Claims Tribunal, has stated the vehicle number differently. As such, right from the beginning, that is from the stage of F.I.R. and chargesheet and even in the R.C. Book, number of vehicle is mentioned as GJ-17- C-1976. However, the Investigating Officer who is sought to be called upon, has stated in the examination-in-chief the vehicle number as GJ-17-C-1970. Therefore, learned Additional Chief Judicial Magistrate has rightly recalled the said Investigating Officer with a view to clear the ambiguity with regard to vehicle

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number. Thus, in my considered opinion, order passed by the learned Judge is perfectly justified and does not deserve any interference.

8. In view of the aforesaid discussion, contention raised by learned advocate for the petitioner that recalling of a witness would amounting to prejudice to the defence, would not be tenable for two reasons - (i) recalling of witness is for limited purpose and (ii) in any event, petitioner will have right of cross- examine the recalled witness.

8.1 So far as contention about the delay is concerned, the same is not worth accepting for the simple reason that the entire purpose of Section 311 is to find out truth so as to arrive at a just decision.

9. Considering the facts of the present case and the reason of recalling of witness, in my considered opinion, would not be amounting to filling up of lacuna. The reason behind recalling of witness is only with a limited purpose for clearing ambiguity with regard to registration number of the vehicle.

9.1 In view of the aforesaid discussion, in my considered opinion, the learned trial court has not committed any error in recalling the witness by exercising power under Section 311, Code. I answer the question accordingly.

10. Resultantly, the present petition is devoid of any merits and is hereby dismissed with no order as to costs.

(NIRAL R. MEHTA,J) ANUP