Gujarat High Court

Kiranben Bhikhubhai Unagar vs State Of Gujarat on 30 November, 2023

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      R/SCR.A/7928/2019                                          ORDER DATED: 30/11/2023

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              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 7928 of 2019

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                           KIRANBEN BHIKHUBHAI UNAGAR
                                      Versus
                                STATE OF GUJARAT
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Appearance:
MR PRATIK Y JASANI(5325) for the Applicant(s) No. 1
MS URVASHI K MEHTA(11469) for the Respondent(s) No. 2
MR. DHAWAN JAYSWAL, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                   Date : 30/11/2023
                                    ORAL ORDER

1. Rule returnable forthwith. Learned APP waives

service of notice of rule on behalf of respondent No.1 -

State of Gujarat.

2. The present petition is filed by the petitioner -

original complainant seeking for following the main

reliefs:

"(A) YOUR LORDSHIPS be pleased to quash and set aside the impugned order dated 21.06.2019 passed by the Ld. 3rd Addl. Sessions Judge, Rajkot below application Ex. 114 in Sessions Case No. 37/2014, in the interest of justice.

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(B) YOUR LORDSHIPS be pleased to stay operation, execution and implementation of the impugned order dated 21.06.2019 passed by the Ld. 3rd Addl. Sessions Judge, Rajkot beRespondentlow application Ex. 114 in Sessions Case No. 37/2014 pending the admission, hearing and final disposal of this petition in the interest of justice;

3. Brief facts of the case as per the case of the

petitioner in this petition are as such that on 25.10.2013,

the respondent no. 2 has brutally murdered her sister by

giving multiple blows with knife. The petitioner was also

assaulted by respondent no. 2. It is further the case of

the petitioner in this petition that the respondent no. 2 was arrested by the Police on 07.11.2013 and he is

presently in judicial custody in District Jail, Rajkot. It is

further the case of the petitioner in this petition that as

per the information available with the petitioner, the

respondent no. 2 has been enlarged on temporary bail by

competent court and on few occasions, The filed charge-

sheet came to be filed on 25.01.2014. Filing of charge

sheet has resulted into registration of Sessions Case No.

37/2014 which is pending for consideration before the Ld.

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3rd Addl. Sessions Judge, Rajkot. It is further the case

of the petitioner in this petition that at initial point of

time, respondent no. 2's advocate had cross examined

P.W. 2 - Shri Sunilbhai Rameshbhai Solanki, P.W. 3

Shri Kalpeshbhai Gandubhai Gohel. However, thereafter,

respondent no. 2 chose to proceed ahead with the case

on his own and the said fact has been recorded by the

trial court at the commencement of the evidence of

prosecution witness no. 4 Shri Gautambhai Jentibhai

Goswami. It is further the case of the petitioner in this

petition that the respondent no. 2 has thereafter cross

examined all the prosecution witnesses, i.e. prosecution

witness no. 4, prosecution witness no. 5 Shri Rameshbhai

Vallabhbhai Monpara, PW-6 Sanjaybhai Haribhai Sanghani, P.W.7 Nilesbhai Bhagwanjibhai Selara, P.W. 8

Vijaybhai Ramdasbhai Suryavanshi, P.W.9 Dr. Altaf

Osmanbhai Dal.

It is further the case of the petitioner in this

petition that at the time of cross examining the P.W. 9,

the trial court once again had asked respondent no. 2

whether he wants legal aid for proceeding ahead with

the trial, however, the respondent no. 2 refused to avail

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legal aid and chose to proceed on his own. It is further

the case of the petitioner in this petition that similarly,

while examining PWs 10, 11, 12 and 13, the respondent

no. 2 cross examined the said witnesses on his own and

refused to avail legal aid. Thereafter, the respondent no.

2 once again engaged advocate to represent him in the

proceedings before the trial court and through said

advocate, he has cross examined P.W.14 Kishorbhai

Jerambhai Jadav. The respondent no. 2 thereafter once

gain started cross examining rest of the witnesses on his

own and he cross examined P.W.15 Vijaysinh Gagjibhai

Dodiya on 03.07.2017, Smt. Kajalben Alpeshbhai Solanki

P.W. 16 on 03.07.2017, P.W.17 Kashmiraben Shaileshbhal

Desal on 31.07.2017, P.W.18 Kiranben Bhikhubhai Unagar (petitioner herein) on 26.07.2018, P.W.19

Balabhai Rudabhai Amethiya on 10.10.2018, P.W.20

Dharmeshbhai Naginbhai Gondaliya, and P.W.21

Mudubhai Rajshibhai Godhaniya on 27.03.2019.

Thereafter, respondent no. 2 again engaged the same

lawyer and through him he preferred an application Ex.

114 for recalling of three prosecution witnesses, i.e.

prosecution witness no. 15, who was cross examined on

03.03.2017, prosecution witness no. 16 who was cross

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examined on 03.07.2017 and prosecution witness no. 18

who was cross examined on 26.07.2018 by giving reason

that the respondent no. 2 does not appear to be sound

in law and that he is not mentally fit to cross examine

the witnesses and he thus has omitted various aspects in

the cross examination of the said witnesses who he seeks

to recall.

It is further the case of the petitioner in this

petition that application Ex. 114 was opposed by the Ld.

Public Prosecutor vide Ex. 116 wherein it was contended

that respondent no. 2 has chosen to proceed ahead with

the cross examination on his own after refusing legal aid

offered to him by the trial court on multiple times and has completed major portion of the cross examination

and that there is no document worth the name produced

by respondent no. 2 to substantiate his case that he is

not physically mentally fit to cross examine the

witnesses. It is further the case of the petitioner in this

petition that the trial court thereafter proceeded further

with the hearing of Application Ex. 114 and vide

impugned order dated 21.06.2019 has been pleased to

allow the said Application by permitting recalling of the

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witnesses as prayed for by the respondent no. 2. Being

aggrieved by and feeling dissatisfied with the Impugned

order dated 21.06.2019 passed by trial court below

Application Ex. 114 in Sessions Case No. 37 of 2014, the

petitioner has preferred the present petition.

4. Heard Mr. Pratik Y. Jasani, the learned counsel for

the petitioner; Ms. Urvashi K. Mehta, the learned

counsel for the respondent No.2 - complainant; and Mr.

Dhawan Jayswal, the learned Additional Public

Prosecutor (APP) for the respondent No.1 - State of

Gujarat.

5. Mr. Pratik Y. Jasani, the learned counsel for the petitioner, has brought my attention to the various

depositions annexed to the present petition. In these, the

respondent No.2 - original accused and the advocate for

the witnesses have cross-examined the witnesses at

length. He has pointed out that all relevant questions

have been asked and detailed cross-examination of the

witnesses, especially three witnesses intended to be

recalled under Section 311 of the Criminal Procedure

Code (hereinafter referred to as the "Cr.P.C."), has taken

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place. Therefore, the trial court, erroneously, without

providing cogent and convincing reasons and without

recording any satisfaction about the necessity of recalling

such witnesses, has allowed the application, which is ex

facie bad in the eyes of the law. Furthermore, he has

argued that the power under Section 311 of the Cr.P.C.

cannot be exercised arbitrarily and solely to fill up the

lacuna of the evidence. He has relied on the decision of

this Court in the case of Imran Karimbhai Madam

versus State of Gujarat reported in 2022 (0) AIJEL HC

244984, specifically highlighting paragraphs 4 and 5 are

relevant. He has also referred to the provisions of

Section 311 of the Cr.P.C. and has argued that there is

no bar to exercising such powers even at the fag end of the trial. However, he has emphasized that such powers

should be exercised judiciously, not capriciously or

arbitrarily. Therefore, he prays to allow the present

petition as the impugned F.I.R. is ex facie bad in the

eyes of the law and needs to be set aside.

6. On the contrary, Ms. Urvashi K. Mehta, the learned

counsel for the respondent No.2 - complainant, has

endorsed the order passed by the trial court. She has

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contended that although the accused has cross-examined

the witnesses, particularly the eye-witnesses, the relevant

questions could not be asked, causing prejudice to the

right of the defense. Furthermore, she has argued that

even the mental condition of the accused is not proper.

Therefore, considering the aspect of a fair trial, she has

submitted that the application submitted under Section

311 of the Cr.P.C. before the concerned trial court is

rightfully allowed. In support of her submission, she has

relied on the judgment of the Hon'ble Apex Court in the

case of the State represented by the Deputy

Superintendent of Police versus Tr. No. Seenivasagan

reported in 2021 AIR SC 2441, specifically referring to

paragraphs 14 and 15 are relevant. Therefore, she has submitted that there is no harm if the order of the trial

court granting that application is continued, and the

proceeding of the trial can be directed to be expedited.

Hence, she prays to dismiss the present petition.

7. Mr. Dhawan Jayswal, the learned Additional Public

Prosecutor (APP) for the respondent No.1 - State of

Gujarat, has tendered the report received from the Police

Inspector, Malaviya Nagar Police Station, Rajkot City,

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which is taken on record, whereby it is stated that the

respondent No.2 - accused person was released on

temporary bail and thereafter, he was absconded for

about two months. He was not arrested during this

period, and after the trial court issued a warrant, he

was arrested. Therefore, considering the conduct of the

accused and the fact that the trial is now on the verge

of conclusion, with the accused having sufficiently cross-

examined the witnesses, no fruitful purpose would be

served by giving one more opportunity to the accused.

Therefore, he prays to quash the order passed by the

trial court, which is against the settled position of law.

8.1. I have considered the rival submissions made at the bar by the respective parties. I have also considered the

fact that the trial is substantially proceeded and the

witnesses, who were sought to be re-examined by way of

application under Section 311 of the Cr.P.C. are

examined at length and cross-examination as well. On

03.07.2017, P.W.15 - Vijaysinh Gagjibhai Dodiya below

Exh.75, on 03.07.2017 Smt. Kajalben Alpeshbhai Solanki

P.W.16, and on 26.07.2018, P.W.18 Kiranben Bhikhubhai

Unagar (petitioner herein) were examined.

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8.2. Subsequently, the impugned application was filed,

allowed, and led to the filing of the present petition.

Although this Court had granted limited interim relief by

granting stay qua these three witnesses, and by allowing

the trial to proceed further. It is essential to note that

the trial court granted the application by considering

serious nature of the offence under Section 302. The

accused was given more opportunities to examine these

witnesses by engaging lawyers on his behalf, even

though, at the relevant time, the accused himself had

cross-examined the witnesses at length. However, the

trial court has passed erroneous order and has failed to

provide further convincing reasons, as mandated by the powers under Section 311 of the Cr.P.C., to establish

that the powers were exercised judiciously and not

arbitrarily or capriciously and for not filling any lacuna.

The trial court did not assign any reasons, which is

inconsistent with the legal principles laid down by the

Hon'ble Apex Court, from the judgment in the case of

Mohanlal Shamji Soni versus Union of India, reported in

1991 2 GLR 974, and the recent judgment relied upon

by the learned advocate for the respondent No.2 in the

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case of Tr. No. Seenivasagan (supra). The settled

principle is that the court should exercise its power with

the objective of preventing the failure of justice, and

such powers cannot be exercised arbitrarily or

capriciously. The trial court's order does not record

satisfaction that the case is made out under Section 311

of the Cr.P.C. On the contrary, upon examining the

record, particularly the depositions and more particularly

cross-examination of the aforementioned witnesses, it

becomes evident that the respondent No.2 - accused had

at length examined these witnesses by posing relevant

questions during cross-examination.

8.3. Therefore, considering the judgments arising from offences under Section 302 in an almost identical

manner, such as in the case of Imran Karimbhai Madam

(supra), specifically highlighting paragraphs 5 and 6, a

sunder:

"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 cross-examined to their satisfaction on 14.02.2019, 13.05.2019 and 17.07.2019.

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Even prosecution witness No. 5 was further cross- xamined 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 crossexamined. 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 rightly concluded by the learned Judge that either to fill up lacuna or with the change of an advocate, no witness

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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 same principles as referred to in

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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."

8.4. Considering the above legal position and the facts of

the present case, I am of the opinion that the trial court's order is not sustainable in the eyes of the law.

The trial court has failed to appropriately consider the

provisions of Section 311 of the Cr.P.C. in the present

case, rendering the order arbitrary and capricious without

judicious consideration. Therefore, intervention is required

to be called for, and I deem it fit to exercise my powers

under Article 227 of the Constitution of India.

9. In light of the above, following order is passed.

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