Gujarat High Court

Ravirajsinh Kanubhai Kanchava vs State Of Gujarat on 5 October, 2023

Bench: Sandeep N. Bhatt

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      R/SCR.A/1265/2020                                         ORDER DATED: 05/10/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 1265 of 2020

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                          RAVIRAJSINH KANUBHAI KANCHAVA
                                       Versus
                                 STATE OF GUJARAT
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Appearance:
MR PREMAL S RACHH(3297) for the Applicant
MR CHINTAN DAVE, APP for the Respondent - State
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                     Date : 05/10/2023

                                      ORAL ORDER

1. The present application is filed by the applicant

under Articles 226 and 227 of the Constitution of India

challenging the impugned judgment and order dated

03.01.2020 passed by the learned Additional Sessions Judge,

Jamnagar in Application under Section 311 of the Code of

Criminal Procedure, 1973 below Exh.19 in Sessions Case

No.83 of 2018, whereby the learned trial Court has allowed

the application filed by the prosecution for recalling of

witness.

2.1 The brief facts of the case are that complainant

and the applicant were known to each other since seven

months prior to the alleged incident and frequently called

each other on mobile phone. Later on, they both feel in love

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and both promised each other to get married. Thereafter, on

13.11.2017, the applicant called the complainant to join him

in his car, thus, the complainant willingly accompanied the

applicant and then they both stayed at different placed at

Kodinar and Diu together for two days. Thereafter, the

applicant dropped the complainant at nearest place to her

house on 14.11.2017 as the applicant got the news that his

father has suffered a heart attack.

2.2 Thereafter, the complainant has lodged a complaint

before the Jamnagar City 'C' Division Police Station for the

offences punishable under Sections 376 and 366 of the IPC

against the applicant, wherein it is alleged that the applicant

lured her for marriage but now he is not ready and willing

to marry her, therefore, legal action be taken against him.

2.3 The investigation is over and charge-sheet is filed

which is culminated into the Sessions Case being Sessions

Case No.83 of 2018, which is pending before the learned

Additional Sessions Judge, Jamnagar. In the said proceeding,

the complainant was examined - Exh.13 and cross-examined

by the prosecutrix - Exh.14.

2.4 Thereafter, on 13.12.2019, an application below

Exh.19 was filed by the prosecution to recall the complainant

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under Section 311 of the Code of Criminal Procedure, 1973,

which is allowed by the learned trial Court vide impugned

order. Hence, this application by the applicant - accused

before this Court.

3. Heard learned advocates. Rule. Learned APP

waives service of notice of rule on behalf of the State. With

consent of the learned advocates, this application is taken up

for hearing and final disposal today.

4.1 Learned advocate Mr. Premal Rachh has submitted

that this is completely a false and frivolous complaint by the

complainant against the applicant. He has submitted that the

complainant has specifically admitted that she accompanied

with the applicant, as per her own will and wish and with

consent and without any force, inducement or coercion on the

part of the applicant. He has submitted that further, the

complainant has categorically stated in said complaint that

neither she had entered into physical relations with the

applicant nor the applicant has forced or threatened her in

any manner. He has submitted that the complainant has

narrated different story in the statement taken by the

investigating officer than the complaint.

4.2 He has submitted that while examining the

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complainant at Exh.13 and cross-examining her at Exh.14,

she has not stated that the applicant has forcibly had

physical relations with her against her Will. She has further

admitted that they were known to each other since last six

months and were having a love affairs. He has submitted

that the learned trial Court has allowed the application of

the prosecution at Exh.19 for recalling the complainant

without considering the settled legal position and by

misinterpreting the provisions of Section 311 of the Code. He

has submitted that there was no any explanation by the

prosecution to make such application for recalling of the

complainant and that too after completion of her evidence. He

has submitted that the application of the prosecution appears

to be only with a view to fill up the lacuna. He has

submitted that in her Further Statement under Section 164

has no relevance at this stage since the investigating officer

is yet to be examined. Therefore, this was happened when

the complainant has deposed earlier. Therefore, again calling

the complainant only for explanation about her earlier

statement ought not to have been permitted by the learned

trial Court.

4.3 In support of his submissions, he has relied upon

the judgment reported in 1991 (2) GLR 974 in the case of

Mohanlal Shamji Soni versus Union of India, more

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particularly paragraphs 9 and 18 thereof. He has submitted

that the impugned order is required to be quashed as the

learned trial Court has committed an error which caused

prejudice to the applicant.

5.1 Per contra, Mr.Chintan Dave learned APP for the State has drawn the attention to para 7 of the impugned

order, which reads as under :

" 7. Moreover, for this order the court has relying on reported judgment of Hon'ble Apex Court in the matter between Zahira Khatun versus State of Gujarat & others, in which Hon'ble Apex Court has expressed the lgal views of Section 311 of Cr.P.C. wherein it is held that Court can not sit silently as a spectator in the trial and therefore, taking into consideration legal opinion of said judicial pronouncement in the present case on hand, the court is of the opinion that if the prosecution is allow to recall the complainant about express of type complaint Dtd 29.12.2017 then the accused shall not suffer any legal injury or the legal defense as the accused can rebuttal of evidence with the cross-examination or by taking evidence

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under section 233 of Cr.P.C. or through Section 313 of Cr.P.C. Therefore, excessing the judicial discretion by allowing the present application the court feels that there is no question abut filing of lacuna through the present application by the prosecution as both the parties have equally legal opportunities and remedies for the interpretation of complaint at complainant at Exh.14 and type complaint of Dtd 29.12.2017 in the trial. Therefore, in view of scope of section 311 of Cr.P.C. we need to clear that here in the present case on hand there are two complaints at Exh.14 Dtd 23.12.2017 and second one is type complaint of Dtd 29.12.2017. So both the documents required judicial interpretation about the form of FIR and therefore, if the opportunities are given to both the parties by the present order then justice will serve to he final verdict. Hence, the following verdict is passed."

5.2 He has submitted that in view of the provisions of

Section 311 of the Code, such powers can be exercised by the

Court very judiciously and with the purpose of reaching the

just decision in the case and therefore, when the Court has

also to consider the aspect of opportunity will be also

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available. The present petitioner to cross examine such

witness. He has submitted that no prejudice would be caused

to the case of the applicant. He has submitted that on the

contrary, this will help the concerned learned trial Court to

find out the truth and could reach to the logical conclusion.

6.1 Considering the rival submissions and considering

the averments made in this application, I am of the opinion

that the learned trial Court has given proper and convincing

reasons while granting application of the prosecution.

6.2 The provisions of Section 311 of the Code reads as

under :

"311. Power to summon material witness,

or examine 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

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essential to the just decision of the case."

6.3 In view of above and considering the judgment of

the Hon'ble Apex Court in the case of Hanuman Ram versus

State of Rajasthan reported in (2008) 15 SCC 652, whereby

the Hon'ble Apex Court has observed as under :

" The determinative factor is whether it is essential to the just decision of the case. The Section is not limited only fro the benefit of the accused, and it will not be an improper exercise of powers of the Court to summon a witness under the Section merely because the evidence supports the case of the prosecution and not that of the accused. The Section is a general Section which applied to all proceedings, enquiries and trials under the Code and empowers the Magistrate to issue to any witness at any stage of such proceedings, trial or enquiry. In Sec.311 the significant expression that occurs is "at any stage of any inquiry or trial or other proceedings under this Code." It is, however, to be borne in mind that whereas the Section confers a very wide power on the Court on summoning witnesses,

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the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind."

6.4 It is also relevant to note that in the case of

Rajaram Prasad Yadav versus State of Bihar reported in

(2013) 14 SCC 461, the nature and scope of powers of the

Court under the said provisions has been explaining and

enumerated in detail and it was held that such powers can

be exercised at any stage, but the paramount consideration

should always by of just decision of the case.

6.5 Therefore, in view of above position of law, the

centripetal consideration for exercise of powers for calling or

recalling of witnesses at any stage of the trial, is that the

same is to help the Court to reach a just decision in the

case. In order that the Court is able to come to a conclusion