Gujarat High Court
Vasim @ Chako Abdulbhai Khebar vs State Of Gujarat on 21 February, 2024
NEUTRAL CITATION
R/SCR.A/4354/2023 ORDER DATED: 21/02/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 4354 of 2023
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VASIM @ CHAKO ABDULBHAI KHEBAR & ORS.
Versus
STATE OF GUJARAT
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Appearance:
MR ASHISH M DAGLI(2203) for the Applicant(s) No. 1,2,3,4
CM SHAH, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 21/02/2024
ORAL ORDER
1. RULE. Learned advocates waive service of notice of rule on
behalf of the respective respondents.
2. By way of this application under Section 482 of the Code of
Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C."),
the applicant has prayed to quash and set aside the impugned
order made by the Court below while recording evidence of PW-7
Exhibit 76 in Sessions Case No.6 of 2021 where after cross is
completed, further examination was directed by the order dated
03.11.2022.
3. Heard the learned advocates for the respective parties.
4. The learned advocate for the petitioner mainly argued that
due to such re-examination, any evidence recorded during the
cross-examination adversely affected the rights of the accused. It
is submitted that during cross-examination, the witness
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specifically stated that no discussion was held at the time of
drawing the panchnama. Additionally, it was objected that a
specific question was asked and a specific reply was given.
Therefore, whatever emerges on the record during cross-
examination can be considered ambiguous. In passing orders
during the continuation of evidence, the Hon'ble Court recorded
words in the question that created ambiguity. During the chief
examination, cross-examination, and upon the conclusion of
cross-examination where no objection was raised at the time the
question was posed, nor when it was recorded in the order, later,
after the cross-examination was over, a request was made under
the guise that ambiguity is not permissible. Only with the
intention of nullifying the evidence emerging on the record
during the cross-examination of the witness, under the guise of
contending ambiguity, the Court below could not have passed
the order in the facts and circumstances of the case. The learned
advocate for the petitioner, therefore, submitted that the petition
may be allowed.
5. The learned APP has vehemently opposed the granting of
the present petition and submits that the learned court below
has rightly taken the decision to re-examine the witnesses for
the purpose of clarifying the ambiguity. Therefore, the petition
may be dismissed.
6. Having heard the learned advocate for the respective
parties and having gone through the documents on record, it
appears that before the court below, evidence has already been
examined, and even the cross-examination of the witnesses has
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also been completed. Apart from this, the learned APP has
sought permission to re-examine the witnesses, and permission
has also been accorded.
7. After considering the settled position of law and the
provisions of the Indian Evidence Act, specifically Sections 137
and 138, it is evident that the scope of re-examination is not
limited solely to addressing ambiguity in cross-examination. If a
party, who called the witness, feels that an explanation is
required for any matter referred to in cross-examination, they
have the liberty to pose any question during re-examination to
obtain clarification. In this regard, reference is required to be
made to the law laid down by the Hon'ble Apex Court in the case
of Rammi Alias Rameshwar v. State of M.P., reported in (1999) 8
SCC 649, which explains in para 16, the scope of re-examination
as follows:
"16. The very purpose of re-examination is to explain matters
which have been brought down in cross-examination. Section
138 of the Evidence Act outlines the amplitude of re-
examination. It reads thus:
"138
Direction of re-examination.- The re- examination shall be
directed to the explanation of matters referred to in cross-
examination; and if new matter is, by permission of the
Court, introduced in re-examination, the adverse party
may further cross-examine upon that matter."
8. This Court deems it fit to refer to the judgment passed by
the Apex Court in the case of Vinod Kumar v. State of Punjab,
reported in (2015) 3 SCC 220, wherein in paragraphs 32 and 33,
the learned Court held as follows:
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"32. In this context, we think it apt to reproduce some passages
from Rammi @ Rameshwar V. State of Madhya Pradesh[28],
where the Court was dealing with the purpose of re-
examination. After referring to Section 138 of the Evidence Act,
the Court held thus:
"There is an erroneous impression that re-examination
should be confined to clarification of ambiguities which
have been brought down in cross- examination. No doubt,
ambiguities can be resolved through re-examination. But
that is not the only function of the re-examiner. If the
party who called the witness feels that explanation is
required for any matter referred to in cross-examination
he has the liberty to put any question in re-examination
to get the explanation. The Public Prosecutor should
formulate his questions for that purpose. Explanation
may be required either when the ambiguity remains
regarding any answer elicited during cross-examination
or even otherwise. If the Public Prosecutor feels that
certain answers require more elucidation from the
witness he has the freedom and the right to put such
questions as he deems necessary for that purpose,
subject of course to the control of the court in accordance
with the other provisions. But the court cannot direct him
to confine his questions to ambiguities alone which arose
in cross-examination.
Even if the Public Prosecutor feels that new matters
should be elicited from the witness he can do so, in which
case the only requirement is that he must secure
permission of the court. If the court thinks that such new
matters are necessary for proving any material fact,
courts must be liberal in granting permission to put
necessary questions".
32. We have reproduced the aforesaid paragraphs to highlight
that when the prosecution has such a right in the process of re-
examination, as a natural corollary, the testimony of a hostile
witness cannot be brushed aside. On the contrary, both the
prosecution and the defence can rely for their stand and stance.
Emphasis on re-examination by the prosecution is not limited
to any answer given in the cross-examination, but the Public
Prosecutor has the freedom and right to put such questions as
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it deems necessary to elucidate certain answers from the
witness. It is not confined to clarification of ambiguities, which
have been brought down in the cross-examination."
9. In view of the above, as the scope of re-examination is not
limited and the Court has ample power to grant sanction or
permission, such permission for the re-examination of the
witnesses is not confined only to ambiguity alone; re-
examination of the witnesses is otherwise also permissible.
Therefore, no case is made out to interfere in the matter. Hence,
the petition is dismissed at the admission stage. Rule
discharged.
(HASMUKH D. SUTHAR,J)
ALI
