[Cites 22, Cited by 0]

Gujarat High Court

Chaitarbhai Damjibhai Vasava vs State Of Gujarat on 7 May, 2026

Author: Gita Gopi

Bench: Gita Gopi

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                            R/CR.RA/1438/2026                                     ORDER DATED: 07/05/2026

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                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                         R/CRIMINAL REVISION APPLICATION (AGAINST ORDER PASSED BY
                                    SUBORDINATE COURT) NO. 1438 of 2026

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                                                CHAITARBHAI DAMJIBHAI VASAVA
                                                            Versus
                                                      STATE OF GUJARAT
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                       Appearance:
                       MR ARJUN M JOSHI(11247) for the Applicant(s) No. 1
                       MR HARDIK DAVE PUBLIC PROSECUTOR with MR PRANAV DHAGAT
                       APP for the Respondent(s) No. 1
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                         CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                                                              Date : 07/05/2026

                                                                   ORDER

1. The revision application challenges the correctness of the order dated 20.04.2026 passed by the Sessions Court which was moved under Section 311 of the Code of Criminal Procedure (for short, 'Cr.PC') for recalling PW1 - Shivrajbhai Ruvjibhai Chaudhary, PW2 - Umang (Eye witness), PW3 - Naresh Vasava, PW16 - JK Khambla, PW17 - PJ Pandya. The applicant was accused no.5 of the Sessions Case No.5 of 2025 and No.6 of 2025. The trial was under Sections 143, 147, 148, 149, 186, 189, 332, 353, 386, 294B, 506(2), 201 and 34 of the Indian Penal Code (for short, 'IPC') and Section 25(1)(A) of the Arms Act.

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2. Learned Advocate Mr. Zubin Bharda along with learned Advocate Mr. Arjun Joshi submitted that the prosecution witness nos.1, 2, 3, 16 and 17 had been examined and cross-examined and after the completion of the cross-examination, the prosecution subsequently produced and exhibited several additional documents including the statements under Section 164 of the Cr.PC, bank record letters, CDR of the witnesses and the accused, customer application form (CAM) and another official correspondence. Advocate Mr. Bharda stated that those documents were brought on record at later stage of the trial after substantial cross-examination had been concluded. Thereby, altering the evidentiary basis of the prosecution case, causing prejudice to the defence.

2.1 Advocate Mr. Bharda submitted that it is mandatory provision under Section 311, where if the Court comes to the conclusion that the evidence are essential for the just decision of the case, then the Court have the power to summon the witness or recall and re-examine any person already examined. Mr. Bharda stated that Section 311 of the Cr.PC can be invoked by either of the side, may be the prosecution or the defence, at the same time, suo-motu the Court can exercise the discretionary power. Rejection of the application has caused great prejudice since the opportunity to cross-examine the witnesses on those

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grounds has been curtailed.

3. Per contra, Public Prosector Mr. Hardik Dave very vehemently stated that the grounds raised are contrary to the record. In fact, the record suggests that all the documents were handed over to the defence and referring to the deposition of PW1 - Shivrajbhai Chaudhary, Public Prosecutor Mr. Hardik Dave drew the attention of this Court to the endorsement recorded prior to para 19. Public Prosecutor Mr. Hardik Dave submitted that an application was moved at Exh.43 and which came to be allowed and the witnesses were recalled and at that time, the defence was provided with the application which was decided on the submission of both the sides.

3.1 Public Prosecutor Mr. Hardik Dave thus stated that the defence lawyer was given the opportunity to resist the application Exh.43 and it was on merits that the application was decided and the complainant as witness was recalled. Public Prosecutor Mr. Hardik Dave submitted that it is fallacious to now submit that no documents were provided to them prior to the cross-examination and submitted that the application moved before the Sessions Court was only with an intention to protract the trial and derail the proceedings.

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4. The facts of the case succinctly can be noted that forest officials were taking action for the removal of the illegal cultivation carried out by certain accused persons on government/forest land. The lawful action provoked accused no.5, the present applicant, to summon the forest officials to his residence subjected them to verbal abuse, threatened discharge of firearm and physically assaulted the forest officer by slapping him. The present accused in collusion with the other accused had coerced and extorted a sum of Rs.60,000/- from the forest officials compelling them to hand over to the illegal cultivators.

5. PW1 Shivrajbhai Chaudhary as a complainant was examined at Exh.32. The SBI statements were exhibited during the course of his evidence at Exh.35. The chief- examination of the complainant was recorded from para 1 to 12. Certain documents by list were produced and referred in the testimony of the complainant. Thereafter, from para 13 to 18, the cross-examination was recorded which came to be concluded on 13.11.2025 and second witness PW2 - Umangbhai Fatehnsinghbhai Vasava was examined on 12.01.2026 and thereafter, on the very same day Exh.43 was moved to recall the complainant. Both the parties were heard and on the order so passed, the complainant was recalled. The prosecution recorded the further examination-in-chief in para 19 and 20 and the

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complainant was cross-examined from the side of the accused at para 21.

5.1 While PW1 was recalled, the statement under Section 164 of Cr.PC was referred to him. The copies of the same as submitted were taken and shared and were given even to the accused, who on the basis of those statements, had cross-examined the complainant.

5.2 PW3 - Nareshbhai Kalidas Vasava was examined for the place of offence at Exh.47 and cross-examination concluded on 22.01.2026. On 23.01.2026, PW4 - Shikhaben Dimpalkumar Patel was examined for the medical certificate at Exh.34, PW5 - Ramjibhai Jethabhai Vasava was examined for the Panchnama under Section 27 which is produced at Exh.55, PW6 - Aniketbhai Raisinghbhai Vasava was examined at Exh.58 for the Panchnama at Exh.59.

5.3 The proceedings suggest that on 12.02.2026, the prosecution submitted a documentary list at Exh.69 and the copy of the same was given to the advocate of the accused which consisted of 12 documents which were Section 65B certificate of the banks (SBI and BOB), mobile companies (Reliance-Jio and Vodafone-Idea) along with consumer application form (CAF), CDR. Thereafter on that day, PW7 - Ramsinghbhai Sonjibhai Vasava, PW8 -

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Himmatsingh Virendra Yadav, PW9 - Jagdishkumar Khansinghbhai Vasava at Exh.79 were examined and subsequently, on 13.02.2026, PW10 - Narsinghbhai Devjibhai Vasava and PW11 - Bharatbhai Ratanbhai Tadvi were examined.

5.3.1 In connection with the examination of PW11, at the conclusion of PW11's examination-in-chief on 13.02.2026, the present applicant had filed an adjournment application before the Sessions Court on the specific ground that documents have been produced vide document list during PW11's examination-in-chief and the adjournment was sought on the ground that the defence, after studying them, wished to cross-examine, therefore the endorsement in the deposition thus was made in the examination-in-chief prior to the cross-examination with regard to the prayer made by the defence lawyer to read the documents prior before cross-examining the PW11. This, itself suggest on record and gets proved that the defence was aware of all the documents produced by list.

5.3.2 The defence lawyer had sought time from the Court to study the new documents. The time was granted on 13.02.2026 and further cross-examination was on 19.02.2026. Sufficient time was granted by the Sessions Judge for the defence advocate to study the documents.

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The further cross-examination was adjourned and the cross-examination of PW11 concluded at para 44 on 26.02.2026.

5.4 It also appears from the record that the application Exh.133 was moved on 26.02.2026 by the Special Public Prosecutor making a prayer to the Court to invoke the provision of Section 291A of the Cr.PC and to exhibit document nos.60, 61, 73, 74, 81 and 82 the order thereupon, suggests that both the sides, Public Prosecutor as well as the defence lawyer were heard and the defence lawyer had stated that he had no dispute with regard to the identity of the accused and therefore, in that circumstances, had given his consent for exhibiting the documents. The learned Special Judge on hearing the parties observing the relevant arguments had allowed the application and had ordered the documents to be exhibited.

5.5 On 27.02.2026, PW12 - Chayaben Jayantibhai Vasava, PSO - Examined - Shown Station Diary (Exh-

143) and FIR (Exh-144), PW13 - Manish Patel, Reliance - Jio Nodal Examined (Shown CDR, CAF, S.65 Certificates), PW14 - Jaikishan J Chauhan - Sketch maker of place of offence - Examined - Sketches shown, PW15 - Mrudul Bhatt, Vodafone-Idea Nodal Examined - (CAF and s.65B

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certificate shown) were examined.

5.6 On 05.03.2026, PW16 was examined at Exh.169 who was the PI and the relevant documents were exhibited during his examination. Suchi Patra at Exh.170 was put in evidence during his deposition and the complaint recorded under Section 154 of the Cr.PC as FIR was referred by him. On 09.03.2026, prosecution produced documentary list Exh.173 consisting of 7 document letters regarding the arrest, letter for test identification parade, report to add Section 201 of the IPC, letter towards issuance of warrant, letter towards recording of Section 164 statement, all the documents were issued/signed by PW17, whose deposition was recorded on 11.03.2026 at Exh.174.

5.6.1 The chief-examination of PW17 was recorded from para 1 to 41. The defence lawyer asked for adjournment which came to be granted and the cross- examination of the PW17 was recorded from para 42 to 44 which concluded on 11.03.2026. The prosecution filed the closing pursis on the completion of the evidence of PW17.

5.7 Further statement of the accused under section 313 of Cr.P.C. were recorded on 27.03.2026. The arguments of the Special Public Prosecutor were heard and the matter was listed for final argument from the side of the accused advocate and on 10.04.2026, from the record it

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transpires that again the matter was listed for final arguments from the side of the accused. The defence advocate on that day, filed sick note making a prayer for adjourning the matter for the final arguments on 18.04.2026 which came to be adjourned.

5.8 On 18.04.2026, when the matter was listed for the final argument from the side of the accused, the application was moved Exh.219 under Section 311 of the Cr.PC to recall the witness nos.1, 2, 3, 16 and 17. After hearing both the sides, on 20.04.2026, the Sessions Court rejected the application moved under Section 311 of the Cr.PC.

5.9 It has been submitted by Public Prosecutor Mr. Hardik Dave that the record proceeding very much clarifies that sufficient opportunity was granted to the accused, documentary list in advance was given and on providing the list, adjournments were sought to study the document which was graciously granted by the Court. No grievance had been raised at the relevant time from the accused regarding the non-supply of the documents or insufficiency of the time, and only when the matter was listed for final hearing from the side of the accused with an attempt to prolong and misdirect the trial, it has been submitted by Public Prosecutor Mr. Hardik Dave that the

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application under Section 311 of the Cr.P.C. was preferred.

5.10 Public Prosecutor Mr. Hardik Dave also stated that during the course of the trial, no grievance was raised nor any objection was raised to the production of the documentary list nor the accused himself had raised any grievance during the recording of his further statement on 27.03.2026, under section 313 Cr.P.C.

6. Section 311 of the Cr.PC gives ample authority to the Court at any stage of trial till the proceeding is in seisin of the Court to summon any witness or examine any person in attendance, though not summoned as witness or recall or re-examine any person already examined, but such power can be invoked to exercise the discretion only if it appears to the Court that the evidence of such person is essential to the just decision of the case. The record proceeding as narrated herein above, the examination of the witnesses and the documentary list produced clarifies that ample opportunity was granted to the defence lawyer, the copy of the documents produced were handed over to the accused's advocate. The defence advocate had even sought time to study those documents and further lengthy cross-examination had been conducted.

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6.1 At all the stage, the learned Sessions Judge had ensured that the defence would get sufficient opportunity to deal with the documents as well the testimony of the witnesses. It cannot be said at any stage of the trial that the learned trial Court Judge has not given fair opportunity to both the sides. None can raise any grievance, as observed from the record of the matter, of any prejudice during the course of the trial. Prior to the examination of the witnesses which have been sought to be recalled i.e. PW1, 2, 3, 16, 17, all the documents referred were provided in advance and placed on record and it was only after hearing the defence, the documents were exhibited.

6.2 It would be at this stage appropriate to refer to the case of State of Gujarat vs. Chetan Himmatlal, reported in 2001 (4) GLR 3010, where the observation made in para 6 and 7, would require reproduction hereinbelow:

"6. The language employed in Section 311 itself makes it clear that such powers are required to be exercised if the evidence of such witness appears to the Court to be essential to the just decision of the case. Mr. Gohil is at loss to point out any error in this observation of the learned Additional Sessions Judge. The argument of Mr. Gohil that powers can be exercised at any point of time before pronouncement of judgment cannot come to his rescue now. It may be

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noted that the powers are to be exercised judicially and they are to be exercised in a manner that no prejudice is caused to either of the sides. The powers cannot be exercised to facilitate filling up of lacuna in a party's case. Above all, the powers under Section 311 are supposed to be exercised for just decision of the case.

6.3 It is not the case that the Court had suo-motu found it necessary to recall any witness or call any witness who had not been cited in the charge-sheet or for that matter, no opportunity was granted to the defence advocate to seek for time to cross-examine the individual witnesses. It is also not the case that the Court had called any witness to be examined as court-witness without any prior notice to any of the prosecution or the defence.

6.4 The discretionary authority under Section 311 of the Cr.PC is for the Court to exercise, it may be so on the application of the prosecution or of the defence, but the discretionary authority ultimately lies with the Court and such discretion could be exercised if the Court comes to the conclusion that the evidence of such a person is essential for the just decision of the case.

7. Here in this matter, the examination-in-chief as well as the cross-examination had been recorded at length. One after one, the witnesses were examined, necessary

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documents which were required for proving the testimony of the witnesses were handed over to the defence lawyer. The more important fact as recorded is that Exh.43 was heard and complainant was recalled.

8. Exh.133 application was moved under Section 291A of the Cr.PC, where after hearing both the sides, the documents were exhibited. It does not come out from the record that any fresh documents were produced without the knowledge of the defence. The rejection of the application by the Sessions Judge is well founded on the merits of the matter. The order is judicious. The application moved by the defence lawyer under Section 311 of the Cr.P.C. at the fag end which came to be rejected appears to be with the only intention to protract the trial and further, the accused under his statement recorded as per the provision of Section 313 of the Cr.PC has categorically denied of examining any witness from his side.