Gujarat High Court
Malek Arbaz @ Bapji Salimbhai vs State Of Gujarat on 7 July, 2025
NEUTRAL CITATION
R/CR.RA/24/2025 ORDER DATED: 07/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (AGAINST ORDER PASSED BY
SUBORDINATE COURT) NO. 24 of 2025
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MALEK ARBAZ @ BAPJI SALIMBHAI
Versus
STATE OF GUJARAT
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Appearance:
MR. SOEB R. BHOHARIA(2205) for the Applicant(s) No. 1
VALIMOHAMMED PATHAN(6383) for the Applicant(s) No. 1
MS. JYOTI BHATT APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR.JUSTICE L. S. PIRZADA
Date : 07/07/2025
ORAL ORDER
1. Rule. Learned APP waives service for the respondent
- State.
2. Heard the learned advocate for the applicant and by
way of filing revision application, he has challenged the
order passed by the learned Additional Sessions Judge,
Mahesana in Sessions Case No.11 of 2020 passing an
order below Exhibit-457, moved by the learned APP to
recall two witnesses, investigating Officer Witness No.93
G.S. Patel and Witness No.95 - O.M. Desai, for the
purpose of contradicting the two defense witnesses who
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have been cited as prosecution witnesses in the charge
sheet, but not examined by the prosecution and the order
passed by the learned Trial Court on 30.11.2024 as
calling two defense witnesses to contradict regarding that
the police statement recorded under Section 161 of the
Cr.P.C.
3. It is submitted by him that the present case in hand
is concerned after the Sessions Case No.41 of 2020 and
Sessions Case No.09 of 2020 after the completion of the
evidence of the prosecution side, the accused has
examined 8 witnesses as defense witnesses and more
particularly, defense witness no.2 - Mohammedmunaf
Chhotumiya Chishti was being examined vide Exhibit-428
and defense witness no.7 - Mr. Sarfraz Mahammadbhai
Pinjara (Mansuri) vide Exhibit-454 and the statement
before the police has been recorded under section 161 of
the Cr.P.C. Subsequently, an application has been moved
by the learned APP vide Exhibit-457 under the provisions
of Section 311 of the Code of Criminal Procedure to recall
two investigating officers. Learned Trial Court has passed
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an order dated 12.11.2024 only, partly allowed, and only
recalled the investigating officer O.M. Desai for the
purpose of contradicting these two defense witnesses
regarding their police statement.
4. Further, it is submitted that the defense witness
cannot be contradicted by adopting this type of practice.
Further, in support of his argument, learned Advocate
has relied upon the judgment of the Hon'ble Apex Court
in the case of Mrs. Shakila Khader etc. Vs. Nausher Gama
and another reported in AIR 1975 Supreme Court 1324
and Hon'ble Apex Court in the case of Tahsildar Singh
and another Vs. State of U.P. reported in AIR 1959
Supreme Court 1012 and has submitted that the order
passed by the learned Sessions Court is required to be set
aside. Further, it is submitted that after the order has
been passed, both the witnesses have been called and
they have been shown the police statement during the
pendency of the revision application, and they have been
contradicted in the witness evidence.
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5. Both Investigating Officers have also been examined
and this Order of the learned Additional Sessions Judge
allowing the application under Section 311 of the Cr.P.C
for contradicting defense witnesses has also recorded the
contradictions of these two defense witnesses by putting
a question to them by showing their statement under
Section 161 of the Cr.P.C and also recorded that
contradiction in the evidence itself is against the settled
principles of law and the evidence is to be discarded and
the order passed is to be set aside.
6. On the other hand, Learned APP submitted that the
order passed by the learned Sessions Judge is just and
proper, exercise of power under Section 311 of the Cr.P.C
is for just decision of the case, and learned Trial Court
has all the power to call any witness to clear the doubt
and for finding out the truth for the justification. Hence,
the present revision application is devoid of the merits
and is required to be rejected.
7. Heard the learned advocates for the respective
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parties. The present case in hand is concerned, it is an
admitted position that there is Sessions Case No.41 of
2022 and Sessions Case No.9 of 2021, these two
witnesses were examined by the defense side as Defense
Witness No.2 and Defense Witness No.7 respectively.
Further, it is pertinent to note here that these both
witnesses have been cited in the charge sheet as
prosecution witnesses, but the prosecution chose not to
examine them. Thereafter, they have been examined by
the defense side as defense witnesses. Further, from the
evidence of these two witnesses, it is transpired that after
the examination-in-chief of these two witnesses are over,
learned APP has not shown any statement to put question
on the cross-examination, and subsequently an
application under Section 311 of the Cr.P.C was preferred
to call two investigating officers for the purpose of
contradiction is to defense witnesses. Against them,
police statement recorded during the investigation.
8. It is settled principle of law that Court witnesses and
defense witnesses cannot be contradicted regarding the
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statement under Section 161 of the Cr.P.C. Further, from
the plain reading of Section 162 of the Cr.P.C, it is clear
that as per the proviso of Section 162 of the Cr.P.C, when
any witness has been called for the prosecution in such
an inquiry or trial and statement has been reduced in
writing, then it can be used by the accused with
permission of the Court or by the prosecution to
contradict such witnesses in the manner provided under
Section 145 of the Indian Evidence Act.
9. So far as the present case in hand is concerned, it is
an admitted position that these two witnesses have never
been examined by the prosecution, but they have been
examined as defense witnesses. Further, as per the
judgment of the Mrs. Shakila Khader etc. Vs. Nausher
Gama (Supra) has been read by the Hon'ble Apex Court
under Section 162 of the Cr.P.C, only witness on behalf of
the prosecution could be contradicted by reference to
their statement made to the police and not Court
witnesses or defence witnesses even so in the
circumstances, all these case is evidence, more or less,
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similar to the evidence cannot be accepted and as per the
judgment of the Tahsildar Singh and another Vs. State of
U.P. (Supra),
"17 At the same time, it being the
earliest record of the statement of a witness
soon after the incident, any contradiction
found therein would be of immense help to
an accused to discredit the testimony of a
witness making the statement. The section
was, therefore, conceived in an attempt to
find a happy via media, namely, while it
enacts an absolute bar against the
statement made before a police- officer
being used for any purpose whatsoever, it
enables the accused to rely upon it for a
limited purpose of contradicting a witness in
the manner provided by s. 145 of the
Evidence Act by drawing his attention to
parts of the statement intended for
contradiction. It cannot be used for
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corroboration of a prosecution or a defence
witness or even a Court witness. Nor can it
be used for contradicting a defence or a
Court witness. Shortly stated, there is a
general bar against its use subject to a
limited exception in the interest of the
accused, and the exception cannot obviously
be used to cross the bar."
10. From the aforesaid judgment of the Hon'ble Apex
Court, it is clear that statement recorded during the
investigation by the police cannot be used for
corroboration of prosecution or defense witness or even
Court witness nor can be used for contradicting the
defense witness or Court witness. Considering this, it is
settled principal law that defense cannot be contradicted
regarding their statement under Section 161 of the
Cr.P.C and by calling the investigating officer for
recalling the witnesses as defense witnesses nos. 2 and 7
to show their statements and then by putting the question
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to the investigating officer and try to contradict these two
witness's statement recorded under Section 161 of the
Cr.P.C. is totally against the settled principle of law.
Hence, considering this, the present revision application
requires consideration.
11. The order passed by the learned Additional Sessions
Judge in Sessions Case No. 41 of 2020 and Sessions Case
No. 9 of 2021 passes an order dated below Exh.457 dated
12.11.2024 and order passes on 30.11.2024 recalling
these two defense witnesses i.e. Defense Witness No.2
and Defense Witness No.7 by the Court to show them
their statement recorded by the investigating officer and
putting questions and also calling the two investigating is
hereby quashed and set aside and if any contradictions of
any of the prosecution witnesses has been recorded, the
same be expunged from the record.
12. Rule made absolute. Direct Service is permitted.
(L. S. PIRZADA, J)
JCP
