Gujarat High Court
Jigar @ Babban S/O Dashrathbhai ... vs State Of Gujarat on 17 September, 2025
NEUTRAL CITATION
R/SCR.A/10261/2025 ORDER DATED: 17/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 10261
of 2025
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JIGAR @ BABBAN S/O DASHRATHBHAI SARGARA(MARWADI)
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR JB DASTOOR(239) for the Applicant(s) No. 1
MR ADITYA JADEJA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 17/09/2025
ORAL ORDER
1) By way of present petition under Articles 226 and 227 of the Constitution of India read with Section 528 of the Bharatiya Nagarik Suraksha Sanhita, the petitioner has sought following relief(s):
"b) Your Lordship be pleased to issue a writ of mandamus or certiorari or any other writ, order, direction in the nature of mandamus or certiorari under Article 21 and 226 for protection of life of petitioner and for fair trial and quash and set aside the order dated 6/5/2025 annexed at Annexure-D to the petition passed by the trial court below exhibit 48, 49, 50 in Special POCSO Case No.41 of 2023 and be pleased to direct the trial court to recall the victim for further cross examination only on the evidence of her mobile communication."
2) Learned Advocate for the petitioner has submitted that the petitioner is an accused facing trial for the offences punishable under Sections 376(3) and 506(2) of the Indian Penal Code with Section 3(a)(4) of the Protection of Children from Sexual Page 1 of 9 Uploaded by ANKIT YOGESHBHAI JANSARI(HCW0109) on Fri Sep 19 2025 Downloaded on : Sat Sep 20 04:19:28 IST 2025 NEUTRAL CITATION R/SCR.A/10261/2025 ORDER DATED: 17/09/2025 undefined Offences Act, (which shall hereinafter be referred to as "POCSO Act" for short) and Sections 3(2)(a), 3(1)(w)(i) and 3(1)(w)(ii) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act. After completion of investigation the charge-sheet came to be filed wherein the prosecution cited 14 witnesses. The evidence of prosecution is on the verge of completion and deposition of the Investigating Officer is yet to be recorded. The petitioner is in jail since last two years as Under Trial Prisoner. The evidence of victim was recorded below Exhibit 12 on 01.02.2024. After approximately seven years and 20 days the petitioner has preferred the application below Exhibit 48 to recall the witness i.e. PW-2 victim to brought to her notice telephonic conversation took place between the petitioner and the victim on the mobile phone of the father of the victim which is produced with documentary list at Exhibit 49 and an application at Exhibit 50 to show the same to the victim. For the said purpose as new evidence is obtained by the petitioner he wants to brought to the notice of victim, hence, he has filed application to recall the witness in view of judgment of the Hon'ble Apex Court in case of Natasha Singh Vs Central Bureau of Investigation (State) reported in (2013) 5 Supreme Court Cases 741, and in case of State of Haryana Vs. Ram Mehar reported in (2016) 8 Supreme Court Cases 762. With a view to fair trial and fair trial is not only for the victim or prosecution but accused has also right of fair trial. The learned Sessions Judge has been pleased to dismiss the application filed below Exhibits 48 to 50, hence, he has requested to allow both the applications. As earlier the Advocate engaged by the accused did not put the question to the victim. Hence, he has requested to allow the present petition.
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3) Learned APP opposed the present petition on the ground that the learned Sessions Judge has not committed any error in dismissing the applications on the ground that the trial is under the POCSO Act and time and again recalling the witness is not permissible. Further he has submitted that after a long time the application is filed without assigning any proper reason. Merely change of Advocate is not a ground to file application to recall the witness. Not only that learned Sessions Judge has properly assigned the reasons while rejecting the applications. So far applications Exhibits 48 to 50 are concerned though was available on record as documentary evidence not a single question was asked though on the same day the said material was available on record. Thereafter, the victim and her parents were examined at that time also not brought to the notice of the said witnesses with an ulterior motive to protract the trial and filling up the lacunae the applications were filed. No any such alleged electronic evidence was handed over to the victim and not proved accordingly as per the mandatory provision of the Bharatiya Sakshya Adhiniyam, 2023, and no authenticity or relevancy of evidence is found and even no relevancy for what reason the petitioner - accused wants to recall the witness also not clearly spelled out. Whatever application or defence the petitioner wants to file or raise, he will have ample opportunity to rebut the presumption and prove his case as and when his stage would come. Hence, he has requested to dismiss the present petition.
4) Having heard both the learned Advocates, and on perusing the record it appears that the petitioner has filed application to recall the victim and the accused is facing the charge under the POCSO Page 3 of 9 Uploaded by ANKIT YOGESHBHAI JANSARI(HCW0109) on Fri Sep 19 2025 Downloaded on : Sat Sep 20 04:19:28 IST 2025 NEUTRAL CITATION R/SCR.A/10261/2025 ORDER DATED: 17/09/2025 undefined Act. There is a specific provision under Section 33(5) of the POCSO Act that the Special Court shall ensure that the child is not called repeatedly to testify in the court. The procedure and powers of Special Court and recording of evidence is prescribed under Chapter VIII of the POCSO Act. Keeping in mind the aforesaid facts as without any admissibility or relevancy of the said alleged electronic evidence as which is faulty in nature in absence of primary evidence and in absence of any sanctity or hash value and alleged evidence is not handed over to the Investigating Officer and further on the ground that raising doubt about the source of said evidence as conversation between the father of the victim and uncle of the accused and the said person uncle of the accused is considered as chance witness by the learned Sessions Judge and in support of alleged evidence the affidavit of such person who is uncle of the accused is produced at Exhibit 51 which is also treating as hearsay evidence and interested witness not considered and come to the conclusion that at belated stage after conclusion of cross-examination of PWs- 1 to 8 only with a view to filling up lacunae the said applications were hence the same came to be dismissed.
5) The power under Section 311 of the Code of Criminal Procedure for the just decision of the case. The power under Section 311 of the CrPC is a discretionary power and underlying object of Section 311 of CrPC is explained by the Hon'ble Supreme Court in the case of V.N. Patil Vs. K. Niranjan Kumar and Others reported in (2021) 3 SCC 661, wherein, the Hon'ble Supreme Court has observed in paragraphs 13 and 17 as under:
"13. The scope of Section 311 CrPC which is relevant for the present purpose is reproduced hereunder:-Page 4 of 9 Uploaded by ANKIT YOGESHBHAI JANSARI(HCW0109) on Fri Sep 19 2025 Downloaded on : Sat Sep 20 04:19:28 IST 2025
NEUTRAL CITATION R/SCR.A/10261/2025 ORDER DATED: 17/09/2025 undefined "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 essential to the just decision of the case."
17. The aim of every Court is to discover the truth. Section 311 CrPC is one of many such provisions which strengthen the arms of a court in its effort to unearth the truth by procedure sanctioned by law. At the same time, the discretionary power vested under Section 311 CrPC has to be exercised judiciously for strong and valid reasons and with caution and circumspection to meet the ends of justice."
6) Merely, change of Advocate is not a ground to recall the witness.
Further, the learned Advocate for the petitioner has relied on Natasha Singh (supra) wherein also the scope and object of the provision of section 311 of CrPC has been discussed by the Hon'ble Supreme Court in paragraph 15 which reads as under:
"15. The scope and object of the provision is to enable the Court to determine the truth and to render a just decision after discovering all relevant facts and obtaining proper proof of such facts, to arrive at a just decision of the case. Power must be exercised judiciously and not capriciously or arbitrarily, as any improper or capricious exercise of such power may lead to undesirable results. An application under Section 311 Cr.P.C. must not be allowed only to fill up a lacuna in the case of the prosecution, or of the defence, or to the Page 5 of 9 Uploaded by ANKIT YOGESHBHAI JANSARI(HCW0109) on Fri Sep 19 2025 Downloaded on : Sat Sep 20 04:19:28 IST 2025 NEUTRAL CITATION R/SCR.A/10261/2025 ORDER DATED: 17/09/2025 undefined disadvantage of the accused, or to cause serious prejudice to the defence of the accused, or to give an unfair advantage to the opposite party. Further, the additional evidence must not be received as a disguise for retrial, or to change the nature of the case against either of the parties. Such a power must be exercised, provided that the evidence that is likely to be tendered by a witness, is germane to the issue involved. An opportunity of rebuttal however, must be given to the other party. The power conferred under Section 311 Cr.P.C. must therefore, be invoked by the Court only in order to meet the ends of justice, for strong and valid reasons, and the same must be exercised with great caution and circumspection. The very use of words such as 'any Court', 'at any stage", or 'or any enquiry, trial or other proceedings', 'any person' and 'any such person' clearly spells out that the provisions of this section have been expressed in the widest possible terms, and do not limit the discretion of the Court in any way. There is thus no escape if the fresh evidence to be obtained is essential to the just decision of the case. The determinative factor should therefore be, whether the summoning/recalling of the said witness is in fact, essential to the just decision of the case."
7) As laid down by the Hon'ble Apex Court in State (NCT of Delhi) Vs. Shiv Kumar Yadav and Another, reported in (2016) 2 Supreme Court Cases 402, reads as under:
"A. Criminal Procedure Code, 1973 - Ss. 311 and 313 - Recall of witnesses under S. 311 - When permissible and warranted - Plea of recall - Has to be bona fide - Mere (in)competence/change of counsel cannot be ground for recall of witnesses - Held, recall cannot be allowed on plea that defence counsel (previous) was not competent Page 6 of 9 Uploaded by ANKIT YOGESHBHAI JANSARI(HCW0109) on Fri Sep 19 2025 Downloaded on : Sat Sep 20 04:19:28 IST 2025 NEUTRAL CITATION R/SCR.A/10261/2025 ORDER DATED: 17/09/2025 undefined and had not effectively cross-examined witnesses- Recall is not a matter of course and discretion given to court has to be exercised judiciously to prevent failure of justice and not arbitrarily - Plea for recall for advancing justice has to be bona fide and has to be balanced carefully with other relevant considerations including uncalled for hardship to witnesses and uncalled for delay in trial - Mere observation that recall was necessary "for ensuring fair of trial" is not enough unless there are tangible reasons to show how fairness of trial suffered without recall.
C. Criminal Trial - Fair and Speedy trial - Right to
- Fairness of trial should not only be from point of view of accused, but also from point of view of victim and society - Entitlement of accused to be represented by counsel of his choice, to be provided all relevant documents, to cross- examine prosecution witnesses and to lead evidence in his defence - Position summarised - Constitution of India - Art.21 - "Procedure established by law" - Public and fair trial and investigation, Right to - Fair trial is a part of guarantee under Art. 21."
8) Hence, merely change in Advocate at earlier point of time is not a proper defence put forwarded by the learned Advocate to recall the witness. Even, learned Sessions Judge has come to the conclusion that when the accused enters into defence at that time he has right to tender evidence to prove his case, hence, there is no chance of any denial of the fair trial to the accused and even otherwise proceeding under the POCSO Act governed by Sections 29 and 30 for presumption and such presumption is required to be rebutted by the accused as and when his turn comes, at that stage the accused shall have liberty to produce the evidence and rebut the presumption and in that event he has Page 7 of 9 Uploaded by ANKIT YOGESHBHAI JANSARI(HCW0109) on Fri Sep 19 2025 Downloaded on : Sat Sep 20 04:19:28 IST 2025 NEUTRAL CITATION R/SCR.A/10261/2025 ORDER DATED: 17/09/2025 undefined liberty to tender or adduce any evidence to prove his innocence. Considering the aforesaid facts, prima facie this Court is of the considered view that no error speaks to be committed by the learned Sessions Judge. The Court has to strike the balance between interest of both, the prosecution as well as of the accused. In view of the above, learned Sessions Judge has passed an order keeping in mind the factual aspect and scale of balance between the prosecution and accused and while recording evidence also learned Judge has to keep in mind relevancy and admissibility of the evidence in the matter.
9) Herein, to invoke the jurisdiction under Article 226 and under Article 227 of the Constitution no any ground is found to interfere either order passed by the learned Sessions Judge as learned Sessions Judge has not committed any error apparent on the face of the record or nothing emerges from the reasons assigned by the learned Sessions Judge any palpable, manifest or substantial error in interpretation of law is noticed in the order. Even, the powers under Article 227 of the Constitution are very much limited and as per the law laid down by the Hon'ble Supreme Court in the case of Radhe Shyam (Supra), wherein in paragraphs 18 and 23, it has been observed as under:
"18. Thus, it has been clearly laid down by this Court that an Order of civil court could be challenged under Article 227 and not under Article 226."
"23. Thus, we are of the view that judicial orders of civil courts are not amenable to a writ of certiorari under Article 226. We are also in agreement with the view of the referring Bench that a writ of mandamus does not lie against a private person not discharging any public duty. Scope of Article 227 is different from Article 226."Page 8 of 9 Uploaded by ANKIT YOGESHBHAI JANSARI(HCW0109) on Fri Sep 19 2025 Downloaded on : Sat Sep 20 04:19:28 IST 2025
NEUTRAL CITATION R/SCR.A/10261/2025 ORDER DATED: 17/09/2025 undefined Considering the aforesaid fact, the order of the learned trial Courts could be challenged under Article 227 but not under Article 226 of the Constitution of India. Herein, the petitioner has sought the prayer to quash and set aside the orders passed by the learned Sessions Judge, which fall under the supervisory jurisdiction of Article 227 of the Constitution of India. Considering the law laid down by the Hon'ble Supreme Court in the case of Radhe Shyam (Supra), the judicial orders of Courts are not amenable to writ jurisdiction under Article 226 of the Constitution and jurisdiction under Article 227 is distinct from the jurisdiction under Article 226 of the Constitution. At this stage it is apposite to refer to the decision of the Hon'ble Supreme Court in the case of M/s. Garment Craft vs. Prakash Chand Goel reported in (2020) 4 SCC 181, wherein in paragraph 77 it is held that High Court does not act as a Court of first appeal while exercising jurisdiction under Article 227 and to re-appreciate, re-weight evidence or fact except error apparent face on the record or perversity in findings. Herein no error noticed apparent on the face of record or findings are not found perverse.
10) In wake of aforesaid discussion, present petition stands dismissed.
(HASMUKH D. SUTHAR,J) ANKIT Page 9 of 9 Uploaded by ANKIT YOGESHBHAI JANSARI(HCW0109) on Fri Sep 19 2025 Downloaded on : Sat Sep 20 04:19:28 IST 2025