Gujarat High Court
Purshottambhai Odhavjibhai Solanki vs State Of Gujarat on 26 July, 2024
NEUTRAL CITATION
R/SCR.A/6068/2022 JUDGMENT DATED: 26/07/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 6068
of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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1 Whether Reporters of Local Papers may be Yes
allowed to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair No
copy of the judgment ?
4 Whether this case involves a substantial No
question of law as to the interpretation of the
Constitution of India or any order made
thereunder ?
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PURSHOTTAMBHAI ODHAVJIBHAI SOLANKI
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR HARSHIT S TOLIA SENIOR ADVOCATE WITH JEET RAJYAGURU
WITH RIYA D DANI with BIREN J PANCHAL(9300) for the
Applicant(s) No. 1
MR. JAINISH U DAVE(14057) for the Applicant(s) No. 1
MRIH SYED SENIOR ADVOCATE WITH MR KR KOSHTI(1092) for
the Respondent(s) No. 2
MR MITESH AMIN PUBLIC PROSECUTOR WITH MR TRUPESH
KATHIRIYA APP for the Respondent(s) No. 1
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NEUTRAL CITATION
R/SCR.A/6068/2022 JUDGMENT DATED: 26/07/2024
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CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 26/07/2024
ORAL JUDGMENT
1. The original complainant approached the Hon'ble Supreme Court for the purpose of transferring the matters from Gujarat to somewhere else and while disposing of the said matters, the Hon'ble Supreme Court has directed to hear the matters pending before the Court expeditiously and, therefore, with the consent of learned counsel appearing for the respective parties, the matters are taken up for final hearing.
2. The Hon'ble Supreme Court has passed the order in Transfer Petition which reads as under:-
"There is already a stay granted by the High Court as a result of which, the Trial Court cannot proceed with the matter.
2. In view of such facts and circumstances, we are not inclined to consider the present Transfer Petition.
3. It will be open for the petitioner to apply before the High Court for vacation / final disposal of the pending petition in which the interim order is granted. Upon such an application being filed, Page 2 of 37 Downloaded on : Mon Jul 29 23:07:31 IST 2024 NEUTRAL CITATION R/SCR.A/6068/2022 JUDGMENT DATED: 26/07/2024 undefined the High Court is requested to take up the same on priority basis.
4. Liberty is granted to the petitioner to approach this Court again in case after the disposal of the matter by the High Court, the trial cannot proceed due to non-cooperation of the State in ensuring the presence of the accused, it will be open for the petitioner to approach this Court again.
5. The Transfer Petition stands disposed of accordingly.
6. Pending application(s), if any, shall stand disposed of."
3. By way of present petition under Section 482 of the Criminal Procedure Code, 1973 is filed by the petitioner with the following reliefs:-
(A) YOUR LORDSHIPS may be pleased to issue appropriate writ, order or direction, quashing and setting aside the impugned order dated 10.06.2022 passed by the learned 3rd Additional Sessions Judge, Gandhinagar in application below Exh. 237 filed by the petitioner in Special ACB Case No. 4 of 2015 and further be pleased to allow the said application below Exh. 237 in the interest of justice;
(B) YOUR LORDSHIPS may be pleased to stay the further proceedings of Special ACB Case No. 4 of 2015 pending before the learned 3rd Additional Sessions Judge, Gandhinagar, pending admission hearing and final disposal of this petition, in the interest of justice;
(C) YOUR LORDSHIPS may be pleased to grant such other and further relief/s as may be deemed fit by this Hon'ble Court in the interest of justice.Page 3 of 37 Downloaded on : Mon Jul 29 23:07:31 IST 2024
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4. Brief facts of the present petition, in nutshell, are as under:-
4.1 The present petitioner is a social worker and active in the politics and he was also Hon'ble Minister in the State of Gujarat in the year 2008 and holding the Fisheries Department. That respondent No.2 lodged a complaint being Criminal Inquiry Case No.1 of 2012 on 03.08.2012 before the learned Special Judge (ACB), Gandhinagar (hereinafter be referred to as "the Trial Court"), inter alia, alleging that the petitioner has committed the offence punishable under Sections 7, 8, 13(1)(a), 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 (hereinafter be referred to as "the PC Act"). It is alleged that being a Minister of the Fisheries Department, the petitioner granted lease to several persons with regard to the pond and lake for purpose of fishing without inviting tenders and thereby has misused his power and entered into corrupt practice.
4.2 It is alleged that pursuant to the complaint, the Trial Court has passed an order on 03.08.2012 for inquiry under Section 202 of Criminal Procedure Code and inquiry was handed over to the Page 4 of 37 Downloaded on : Mon Jul 29 23:07:31 IST 2024 NEUTRAL CITATION R/SCR.A/6068/2022 JUDGMENT DATED: 26/07/2024 undefined Superintendent of Police, Gandhinagar. Thereafter, on several occasions, the Trial Court has passed an order extending time to submit a final report by the Superintendent of Police, Gandhinagar. Vide order dated 20.5.2013, the Trial Court transferred the investigation to the Director of ACB with a direction that the investigation be carried out by any police officer in the higher rank than the Police Inspector. The police submitted a report vide Exhibit 29 dated 31.5.2014 and vide Exhibit 42 dated 23.6.2015. On the basis of said report, the Court has issued the process against seven accused including the present petitioner for the offences punishable under Sections 7, 8, 13(1)(a), 13(1)(d), 13(2) of the Act vide order dated 12.8.2015.
Pursuant to the aforesaid order dated 12.8.2015, Inquiry Case No.1 of 2012 was registered as Special Case (ACB) No.4 of 2015.
The respondent No.2 original complainant gave one purshis on 05.08.2020 inter alia, stating that he did not want to proceed further with any oral or written evidence and did not want to proceed with the inquiry further. However, subsequently, respondent No.2 withdrew above application and accordingly, the order came to be passed by the Trial Court on 07.10.2020 on Page 5 of 37 Downloaded on : Mon Jul 29 23:07:31 IST 2024 NEUTRAL CITATION R/SCR.A/6068/2022 JUDGMENT DATED: 26/07/2024 undefined the application at Exhibit 68. Thereafter, the complainant led his evidence at pre-charge stage. At that relevant point of time, learned advocate Shri D.P. Joshi was appearing for accused No.1 and only one question asked in the cross-examination by him and no effective cross-examination appeared to have been conducted by him. The respondent No.2 submitted closing purshis at Exhibit 92 before the Court.
4.3 The Court passed an order on 23.10.2020 thereby issuing the suo motu witness summons under Section 311 of the Code of Criminal Procedure to the police officers who have conducted the investigation and the police officers were examined as prosecution witnesses. The petitioner was suffering from multiple diseases and was taking the treatment at Una. However, though the petitioner realized that his advocate Shri D.P. Joshi was unable to remain present before the Court on relevant dates, none of the above witnesses have been cross- examined. Under these circumstances, the petitioner changed the advocate and new advocate was engaged to conduct the trial in the proper manner, following the procedures of Criminal Procedure Code which confers certain rights in favour of the accused at pre-
Page 6 of 37 Downloaded on : Mon Jul 29 23:07:31 IST 2024NEUTRAL CITATION R/SCR.A/6068/2022 JUDGMENT DATED: 26/07/2024 undefined charge stage. After receiving the record of the case, the advocate representing the petitioner found illegalities and irregularities including none cross-examination of the prosecution witnesses. The present petitioner, through advocate, submitted an application at Exhibit 237, inter alia, alleging to open the right of cross-examination of PW-2 to PW-4 and for further cross-examination of PW-1, i.e. the complainant by recalling him. However, without appreciating the true and correct perspective of Section 311 of Criminal Procedure Code and ignoring the evidence, the Trial Court rejected the above application at Exhibit 237. It is alleged that the impugned order passed by the Trial Court is illegal, arbitrary, unjust and perverse and the same is required to be quashed and set aside Further, the petitioner had also filed an application at Exhibit 247 seeking permission to approach the higher forum and to grant adjournment of 30 days, which came to be partly allowed.
5. Being aggrieved and dissatisfied with the impugned order passed by the learned Special Judge, the petitioner has preferred this petition.
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6. Heard Mr.Harshit S Tolia, learned senior counsel with Mr.Biren J. Panchal, learned counsel with Mr.Jeet Y. Rajyaguru, learned counsel with Ms.Riya D. Dani, learned counsel for the petitioner, Mr.Mitesh Amin, learned Public Prosecutor with Mr.Trupesh Kathiriya, learned Additional Public Prosecutor for the respondent - State of Gujarat and Mr.I. H. Syed, learned senior counsel with Mr.K. R. Koshti, learned counsel for the respondent
- complainant at length.
7. Mr.Harshit S Tolia, learned senior counsel with Mr.Biren J.
Panchal, learned counsel with Mr.Jeet Y. Rajyaguru, learned counsel with Ms.Riya d. Dani, learned counsel for the petitioner has submitted the same facts which are narrated in the memo of petition. He has submitted that impugned order passed by the Trial Court is illegal and arbitrary and is violative of the provisions of Section 311 of the Criminal Procedure Code and the principles of natural justice. He has submitted that the Trial Court has failed to appreciate the fact that the right to cross-examine the prosecution witnesses at pre-charge state is valuable right of the accused which cannot be given a go-bye and he is not at fault for absence of his advocate on the date of deposition of the Page 8 of 37 Downloaded on : Mon Jul 29 23:07:31 IST 2024 NEUTRAL CITATION R/SCR.A/6068/2022 JUDGMENT DATED: 26/07/2024 undefined concerned prosecution witnesses and since the petitioner himself was not keeping well, he was unable to remain present before the Court and he was not aware that his advocate was absent on the relevant dates. He has submitted that absence of the advocate, the petitioner should not suffer in his right to cross-
examine the prosecutions witnesses including the complainant.
He has submitted that if the Court below had opened the right of the petitioner to cross-examine the witnesses or to recall the complainant, the interest of justice would have been served, however, the Court below has not given a chance to cross-examine the relevant prosecution witnesses. He has submitted that the P.W - 2 to P.W - 4 are required to be recalled and permitted to be cross-examined on behalf of the petitioner so as to enable the Trial Court to reach to the just decision and the complainant is also required to be recalled for further cross-examination.
7.1 Mr.Tolia, learned senior counsel has submitted that the petitioner has not delayed the trial, but due to corona and lock-
down, the case before the Trial Court was in standstill mode for quite long time and, thereafter, now the prosecution has been started at pre-charge stage. He has submitted that an oversight Page 9 of 37 Downloaded on : Mon Jul 29 23:07:31 IST 2024 NEUTRAL CITATION R/SCR.A/6068/2022 JUDGMENT DATED: 26/07/2024 undefined committed by the legal representative of the accused either in procuring relevant material on record or eliciting relevant answers from the witnesses are very vital and must to reach to the just conclusion and, therefore, it cannot be equated with lacuna or any inherent weakness in the case of the accused. He has submitted that the impugned order is violative of principles of justice and the valuable right of the petitioner is jeopardized and he suffers agony of entire trial though there is no case is made out against him. He has submitted that the impugned order dated 10.06.2022 passed by the Trial Court in application below Exhibit 237 is required to be quashed and set aside and the present petition is required to be allowed.
7.2 In support of his submissions, Mr.Tolia, learned senior counsel has relied upon the following decisions.
(1) Satbir Singh Vs. State of Haryana and others reported in 2023 SCC OnLine SC 1086;
(2) Manju Devi Vs. State of Rajasthan and another reported in (2019) 6 SCC 203;
(3) Zahira Habibullah Sheikh and another Vs. State of Gujarat and others reported in (2006) 3 SCC 374;
(4) Natasha Singh Vs. Central Bureau of Investigation (State) reported in (2013) 5 SCC 741;
(5) Mohanlal Shamji Soni Vs. Union of India and another reported in 1991 Supp (1) SCC 271;Page 10 of 37 Downloaded on : Mon Jul 29 23:07:31 IST 2024
NEUTRAL CITATION R/SCR.A/6068/2022 JUDGMENT DATED: 26/07/2024 undefined (6) Madhav Hayawadanrao Hoskot Vs. State of Maharashtra reported in (1978) 3 SCC 544;
8. In the case of Satbir Singh (supra), the Hon'ble Supreme Court has held and observed in paras - 12, 13 and 14 as under:-
"12. Having considered the matter and surveyed the law supra, the Court finds that a case for interference has been made out. Under the peculiar facts of the present case, the request for recall of the appellant under Section 311, CrPC was justified, as at the relevant point of time in his initial deposition, there was no occasion for him to bring the relevant facts relating to similarity of data before the Court, which arose after the CFSL expert was examined.
13. Further, we find that if opportunity is given for reexamination, respondents no. 2 to 9 will not be prejudiced as they will have ample opportunity to cross- examine the appellant. We have noted their apprehension apropos delay and issued appropriate direction infra.
14. In view of the above, the appeal is allowed. The orders of the Courts below are set aside. The application of the appellant under Section 322, CrPC for his recall to be further examined as a witness stands allowed. The same be done on a date to be fixed by the Trial Court, within six weeks from today. The trial will be brought to conclusion within 9 months from the date of receipt of this judgment. Pending applications are disposed of.
8.1 In the case of Manju Devi (supra), the Hon'ble Supreme Court has held and observed in paras 10 and 13 as under:-
"10. It needs hardly any emphasis that the discretionary powers like those under Section 311 CrPC are essentially intended to ensure that every necessary and appropriate measure is taken by the Court to keep the record straight and to clear any ambiguity in so far as the evidence is Page 11 of 37 Downloaded on : Mon Jul 29 23:07:31 IST 2024 NEUTRAL CITATION R/SCR.A/6068/2022 JUDGMENT DATED: 26/07/2024 undefined concerned as also to ensure that no prejudice is caused to anyone. The principles underlying Section 311 CrPC and amplitude of the powers of the Court thereunder have been explained by this Court in several decisions Vide Mohanlal Shamji Soni v. Union of India: 1991 Supp (1) SCC 271, Zahira Habibulla H. Sheikh v. State of Gujarat: (2004) 4 SCC 158, Mina Lalita Baruwa v. State of Orissa and Others: (2013) 16 SCC 173 and Rajaram Prasad Yadav v. State of Bihar and Ors: 2013 (14) SCC 461 and Natasha Singh v. CBI (State) : 2013 (5) SCC 741. In Natasha Singh v. CBI (State) : (2013) 5 SCC 741, though the application for examination of witnesses was filed by the accused but, on the principles relating to the exercise of powers under Section 311, this Court observed, inter alia, as under:- (SCC pp. 746 & 748-49, paras 8 & 15) "8. Section 311 CrPC empowers the court to summon a material witness, or to examine a person present at "any stage" of "any enquiry", or "trial", or "any other proceedings"
under CrPC, or to summon any person as a witness, or to recall and re-examine any person who has already been examined if his evidence appears to it, to be essential to the arrival of a just decision of the case. Undoubtedly, the CrPC has conferred a very wide discretionary power upon the court in this respect, but such a discretion is to be exercised judiciously and not arbitrarily. The power of the court in this context is very wide, and in exercise of the same, it may summon any person as a witness at any stage of the trial, or other proceedings. The court is competent to exercise such power even suo motu if no such application has been filed by either of the parties. However, the court must satisfy itself, that it was in fact essential to examine such a witness, or to recall him for further examination in order to arrive at a just decision of the case.
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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 CrPC must not be allowed only to fill up a lacuna in the case of the prosecution, or of the defence, or to the disadvantage of the accused, or to cause serious Page 12 of 37 Downloaded on : Mon Jul 29 23:07:31 IST 2024 NEUTRAL CITATION R/SCR.A/6068/2022 JUDGMENT DATED: 26/07/2024 undefined 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 CrPC 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." (emphasis in original)
13. Though it is expected that the trial of a sessions case should proceed with reasonable expedition and pendency of such a matter for about 8-9 years is not desirable but then, the length/duration of a case cannot displace the basic requirement of ensuring the just decision after taking all the necessary and material evidence on record. In other words, the age of a case, by itself, cannot be decisive of the matter when a prayer is made for examination of a material witness."
8.2 In the case of Zahira Habibullah Sheikh (supra), the Hon'ble Supreme Court has held and observed in paras 28, 29 and 30 as under:-
"28. As indicated above, the section is wholly discretionary. The second part of it imposes upon the Magistrate an obligation: it is, that the court shall summon and examine all persons whose evidence appears to be essential to the just decision of the case. It is a cardinal Page 13 of 37 Downloaded on : Mon Jul 29 23:07:31 IST 2024 NEUTRAL CITATION R/SCR.A/6068/2022 JUDGMENT DATED: 26/07/2024 undefined rule in the law of evidence that the best available evidence should be brought before the court. Sections 60, 64 and 91 of the Indian Evidence Act, 1872 (in short, 'Evidence Act') are based on this rule. The court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their side. This must be left to the parties. But in weighing the evidence, the court can take note of the fact that the best available evidence has not been given, and can draw an adverse inference. The court will often have to depend on intercepted allegations made by the parties, or on inconclusive inference from facts elicited in the evidence. In such cases, the court has to act under the second part of the section. Sometimes the examination of witnesses as directed by the court may result in what is thought to be "filling of loopholes". That is purely a subsidiary factor and cannot be taken into account. Whether the new evidence is essential or not must of course depend on the facts of each case, and has to be determined by the Presiding Judge.
29. The object of the Sec. 311 is to bring on record evidence not only from the point of view of the accused and the prosecution but also from the point of view of the orderly society. If a witness called by court gives evidence against the complainant he should be allowed an opportunity to cross- examine. The right to cross-examine a witness who is called by a court arises not under the provision of Sec. 311, but under the Evidence Act which gives a party the right to cross-examine a witness who is not his own witness. Since a witness summoned by the court could not be termed a witness of any particular party, the court should give the right of cross-examination to the complainant. These aspects were highlighted in Jagat Rai V/s. State of Maharashtra, AIR 1968 SC 178.
30. Right from the inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying existence of courts of justice. The operative principles for a fair trial permeate the common law in both civil and criminal contexts. Application of these principles involves a delicate judicial balancing of competing interests in a criminal trial, the interests of the accused and the public and to a great extent that of the victim have to be weighed not losing sight of the public interest involved in the prosecution of persons who commit offences."Page 14 of 37 Downloaded on : Mon Jul 29 23:07:31 IST 2024
NEUTRAL CITATION R/SCR.A/6068/2022 JUDGMENT DATED: 26/07/2024 undefined 8.3 In the case of Natasha Singh (supra), the Hon'ble Supreme Court has held and observed in paras 12, 20 and 22 as under:-
"12. In Rajeswar Prasad Misra V/s. The State of West Bengal & Anr., AIR 1965 SC 1887, this Court dealt with the ample power and jurisdiction vested in the court, with respect to taking additional evidence, and observed, that it may not be possible for the legislature to foresee all situations and possibilities and therefore, the court must examine the facts and circumstances of each case before it, and if it comes to the conclusion that additional evidence is necessary, not because it would be impossible to pronounce the judgment without it, but because there would be a failure of justice without such evidence being considered, and if such an action on its part is justified, then the court must exercise such power. The Court further held as under:-
"...the Criminal Court has ample power to summon any person as a witness or recall and re-examine any such person even if the evidence on both sides is closed and the jurisdiction of the Court must obviously be dictated by exigency of the situation, and fair play and good sense appear to be the only safe guides and that only the requirements of justice command the examination of any person which would depend on the facts and circumstances of each case." (Emphasis added)
20. Undoubtedly, an application filed under Section 311 Cr.P.C. must be allowed if fresh evidence is being produced to facilitate a just decision, however, in the instant case, the learned Trial Court prejudged the evidence of the witness sought to be examined by the appellant, and thereby cause grave and material prejudice to the appellant as regards her defence, which tantamounts to a flagrant violation of the principles of law governing the production of such evidence in keeping with the provisions of Section 311 Cr.P.C. By doing so, the Trial Court reached the conclusion that the production of such evidence by the defence was not essential to facilitate a just decision of the Page 15 of 37 Downloaded on : Mon Jul 29 23:07:31 IST 2024 NEUTRAL CITATION R/SCR.A/6068/2022 JUDGMENT DATED: 26/07/2024 undefined case. Such an assumption is wholly misconceived, and is not tenable in law as the accused has every right to adduce evidence in rebuttal of the evidence brought on record by the prosecution. The court must examine whether such additional evidence is necessary to facilitate a just and proper decision of the case. The examination of the hand-writing expert may therefore be necessary to rebut the evidence of Rabi Lal Thapa (PW.40), and a request made for his examination ought not to have been rejected on the sole ground that the opinion of the hand- writing expert would not be conclusive. In such a situation, the only issue that ought to have been considered by the courts below, is whether the evidence proposed to be adduced was relevant or not. Identical is the position regarding the panchnama witness, and the court is justified in weighing evidence, only and only once the same has been laid before it and brought on record. Mr. B.B. Sharma, thus, may be in a position to depose with respect to whether the documents alleged to have been found, or to have been seized, were actually recovered or not, and therefore, from the point of view of the appellant, his examination might prove to be essential and imperative for facilitating a just decision of the case.
22. In view of above, the appeal succeeds and is allowed. The judgment and order of the Trial Court, as well as of the High Court impugned before us, are set aside. The application under Section 311 Cr.P.C. filed by the appellant is allowed. The parties are directed to appear before the learned Trial Court on the 17th of May, 2013, and the learned Trial Court is requested to fix a date on which the appellant shall produce the three witnesses, and the same may thereafter be examined expeditiously in accordance with law, and without causing any further delay. Needless to say that the prosecution will be entitled to cross examine them."
8.4 In the case of Mohanlal Shamji Soni (supra), the Hon'ble Supreme Court has held and observed in paras - 10 and 18 as under:-
Page 16 of 37 Downloaded on : Mon Jul 29 23:07:31 IST 2024NEUTRAL CITATION R/SCR.A/6068/2022 JUDGMENT DATED: 26/07/2024 undefined "10. It is a cardinal rule in the law of evidence that the best available evidence should be brought before the Court to prove a fact or the points in issue. But it is left either for the prosecution or for the defence to establish its respective case by adducing the best available evidence and the Court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their sides. Nonetheless if either of the parties with-holds any evidence which could be produced and which, if produced, be unfavourable to the party withholding such evidence, the court can draw a presumption under illustration (g) to Section 114 the Evidence Act. In such a situation a question that arises for consideration is whether the presiding officer of a Court should simply sit as a mere umpire at a contest between two parties and declare at the end of the combat who has won and who has lost or is there not any legal duty of his own, independent of the parties, to take an active role in the proceedings in finding the truth and administering justice? It is a well accepted and settled principle that a Court must discharge its statutory functions-whether discretionary or obligatory-
according to law in dispensing justice because it is the duty of a Court not only to do justice but also to ensure that justice is being done. In order to enable the Court to find out the truth and render a just decision, the salutary provisions of Section 540 of the Code (Section 311 of the New Code) are enacted whereunder any Court by exercising its discretionary authority at any stage of enquiry, trial or other proceeding can summon any person as a witness or examine any person in attendance though not summoned as a witness or recall or re-examine any person in attendance though not summoned as a witness or recall and re-examine any person already examined who are expected to be able to throw light upon the matter in dispute; because if judgments happen to be rendered on inchoate,, inconclusive and speculative presentation of facts, the ends of justice would be defeated.
18. The next important question is whether Section 540 gives the court carte-blanche drawing no underlying principle in the exercise of the extra-ordinary power and whether the said Section is unguided, uncontrolled and uncanalised. Though Section 540 (Section 311 of the new Code) is, in the widest possible terms and calls for no limitation, either with regard to the stage at which the powers of the court should be exercised, or with regard to Page 17 of 37 Downloaded on : Mon Jul 29 23:07:31 IST 2024 NEUTRAL CITATION R/SCR.A/6068/2022 JUDGMENT DATED: 26/07/2024 undefined the manner in which they should be exercised, that power is circumscribed by the principle that underlines Section 540, namely, evidence to be obtained should appear to the court essential to a just decision of the case by getting at the truth by all lawful means. Therefore, it should be borne in mind that the aid of the section should be invoked only with the object of discovering relevant facts or obtaining proper proof of such facts for a just decision of the case and it must be used judicially and not capriciously or arbitrarily because any improper or capricious exercise of the power may lead to undesirable results. Further it is incumbent that due care should be taken by the court while exercising the power under this section and it should not be used for filling up the lacuna left by the prosecution or by the defence or to the disadvantage of the accused or the cause serious prejudice to the defence of the accused or to give an unfair advantage to the rival side and further the additional evidence should not be received as a disguise for a retrial or to change the nature of the case against either of the parties."
8.5 In the case of Madhav Hayawadanrao Hoskot (supra), the Hon'ble Supreme Court has held and observed in paras 10 and 11 as under:-
"10. Freedom is what freedom does, and here we go straight to Art. 21 of the Constitution, where the guarantee of personal liberty is phrased with superb amplitude:
Article 21: Protection of life and personal liberty:- No person shall be deprived of his life or personal liberty except according to procedure established by law. (emphasis added) 'Procedure established by law' are words of deep meaning for all lovers of liberty and judicial sentinels. Amplified, activist fashion, 'procedure' means 'fair' and reasonable procedure' which comports with civilised norms like natural justice rooted firm in community consciousness,- not primitive processual barbarity nor legislated normative mockery. In a land-mark case, Maneka Gandhi, (1978) 1 Page 18 of 37 Downloaded on : Mon Jul 29 23:07:31 IST 2024 NEUTRAL CITATION R/SCR.A/6068/2022 JUDGMENT DATED: 26/07/2024 undefined SCC 248 at pp. 277, 281 and 284, Bhagwati, J. (on this point the court was unanimous) explained: (Paras 4, 5, 7 &
8) "Does Article 21 merely require that there must be some semblance of procedure, howsoever arbitrary or fanciful, prescribed by law before a person can be deprived of his personal liberty or that the procedure must satisfy certain requisites in the sense that it must be fair and reasonable-
Art. 21 occurs in Part III of the Constitution which confers certain fundamental rights''.
"Is the prescription of some sort of procedure enough or must the procedure comply with any particular requirements- Obviously, the procedure cannot be arbitrary, unfair or unreasonable. This indeed was conceded by the learned Attorney General who with his usual candour frankly stated that it was not possible for him to contend that any procedure howsoever arbitrary, oppressive or unjust may be prescribed by the law.'' "The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non- arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14. It must be "right and just and fair'' and not arbitrary, fanciful or oppressive; otherwise it would be no procedure at all and the requirement of Art. 21 would not be satisfied.
Any procedure which permits impairment of the constitutional right to go abroad without giving reasonable opportunity to show cause cannot but be condemned as unfair and unjust and hence, there is in the present case clear infringement of the requirement of Article 21.'' One of us in his separate opinion there observed: (Paras 81, 82, 84 & 85) "Procedure established by law'', with its lethal potentiality, will reduce life and liberty to a precarious plaything if we do not ex necessitate import into those weighty words an adjectival rule of law, civilised in its soul, fair in its heart and fixing those imperatives of procedural protection absent which the processual tail will wag the substantive head. Can the sacred essence of the human right to secure Page 19 of 37 Downloaded on : Mon Jul 29 23:07:31 IST 2024 NEUTRAL CITATION R/SCR.A/6068/2022 JUDGMENT DATED: 26/07/2024 undefined which the struggle for liberation, with 'do or die' patriotism, was launched be sapped by formalistic and pharisaic prescriptions, regardless of essential standards- An enacted apparition is a constitutional illusion. Processual justice is writ patently on Article 21.
Procedure which deals with the modalities of regulating, restricting or even rejecting a fundamental right falling within Art. 21 has to be fair, not foolish, carefully designed no effectuate, not to subvert, the substantive right itself. Thus understood, 'procedure' must rule out anything arbitrary, freakish or bizarre. A valuable constitutional right can be canalised only by civilised process......What is fundamental is life and liberty. What is procedural is the manner of its exercise. This quality of fairness in the process is emphasised by the strong word 'established' which means 'settled firmly' not wantonly or whimsically. If it is rooted in the legal consciousness of the community it becomes 'established' procedure. And 'law' leaves little doubt that it is norma regarded as just since law is the means and justice is the end.
Procedural safeguards are the indispensable essence of liberty. In fact, the history of personal liberty is largely the history of procedural safeguards and right to a hearing has a human-right ring. In India, because of poverty and illiteracy, the people are unable to protect and defend their rights, observance of fundamental rights is not regarded as good politics and their transgression as bad politics.
To sum up, 'procedure' in Art. 21 means fair, not formal procedure. 'Law' is reasonable law, not any enacted piece.''
11. One component of fair procedure is natural justice. Generally speaking and subject to just exceptions, at least a single right of appeal on facts, where criminal conviction is fraught with long loss of liberty, is basic to civilized jurisprudence. It is integral to fair procedure, natural justice and normative universality save in special cases like the original tribunal being a high bench sitting on a collegiate basis. In short, a first appeal from the Sessions Court to the High Court, as provided in the Cr. P. C., manifests this value upheld in Article 21."Page 20 of 37 Downloaded on : Mon Jul 29 23:07:31 IST 2024
NEUTRAL CITATION R/SCR.A/6068/2022 JUDGMENT DATED: 26/07/2024 undefined 8.6 Over-and-above the oral submissions, Mr.Tolia, learned senior counsel appearing for the petitioner has submitted the following written submissions.
1. By way of the present petition, the petitioner has challenged the order dated 10.06.2022 passed by the learned 3rd Additional Sessinos Judge, Gandhinagar in application below Exh. 237 in Special ACB Case No.4 of 2015, thereby rejecting the said application of the petitioner to recall the complainant and to permit his cross-examination and further, to open the right to cross- examine witness no.2, 3 and 4 under the provisions of S. 311 CrPC.
Factual Matrix
2. The petitioner is a social worker and active in politics, whereby he was appointed as Minister of Fisheries in the State of Gujarat for the year 2008. The complainant, respondent No.2 herein filed one false and frivolous complaint bearing Criminal Inquiry Case No. 1 of 2021 dated 03.08.2021 before the learned Special Judge, ACB, Gandhinagar for the alleged offence punishable under Sections 7, 8, 13(1)(a), 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988.
3. After the issuance of the order of inquiry u/s. 202 Cr.P.C., the evidences were led by the complainant. Further, the complainant gave one pursis / application dated 05.08.2020 stating that he does not want to proceed further with any oral or written evidence, which later came to be withdrawn by the complainant and accordingly, an order was passed by the Court dated 07.10.2020. Later, the complainant led his evidence at pre-charge stage, under Section 246(4) of Cr.P.C. vide Exhibit 86.
4. The said witness was not at all effectively cross- examined by the earlier Advocate of the petitioner, except putting a single formal question to him.
5. Subsequently, PW-2 to P.W-4 were also examined upto 23.02.2021. However, the right of the petitioner to Page 21 of 37 Downloaded on : Mon Jul 29 23:07:31 IST 2024 NEUTRAL CITATION R/SCR.A/6068/2022 JUDGMENT DATED: 26/07/2024 undefined examine the witness has been closed. The same is due to the fact that the advocate representing the petitioner during that point of time (Ld. Advocate Shri D. P. Joshi), could not remain present because of his ill health. During that period, said earlier Ld. Advocate was also operated for the treatment of cataract, again as observed in the impugned order.
6. Petitioner is also suffering from severe problem of kidney and at that point of time was unable to remain personally present in the Court and exemption reports were also allowed. Further, the petitioner also underwent kidney transplant. All above facts are clearly emerging from the impugned order also.
7. Ultimately, the petitioner changed the lawyer to conduct the enquiry / trial effectively and present Advocate (Ld. Advocate Shri Utpal R Dave) was appointed. The present Advocate filed an application u/s. 311 Cr.P.C. to re-call and re-examine before the Ld. Court vide Exh. 237. It is found that it is absolutely necessary to recall and re- examine the following witnesses as per the provisions u/ s. 311 CrPC, in the interest of justice and to encourage the fair adjudication of the matter. The details of the witnesses sought to be re-called and re-examined, along with the comments / factors necessitating such re-call are as follows:
Sr.No Name and Exh. Comments Pg. No
1 Ishqbhai Mahmmedbhai The Advocate for the Pg. 48
Marodia (Respondent petitioner, Shri D. P. @ Pg.
No.2) Exh. 86 Joshi, did not conduct 51
effective cross -
examination of the
witness, except
putting only one
question in cross -
examination.
2 Sharad Jitendraprasad The Advocate for the Pg. 87
Singhal; Exh. 138 Petitioner remained @ Pg.
absent in the Court, on 88
the day on which the
witness was examined
(18.12.2020) and the
right of cross -
examination was
closed.
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undefined
3 Parathibhai Jethabhai The Advocate for the Pg. 95
Chaudhary; Exh. 147 Petitioner remained @ Pg.
absent in the Court, on 107
the day on which the
witness was examined
(01.01.2021,
28.01.2021), and the
right of cross -
examination was
closed.
4 Dr. Archana Shivhare; The Advocate for the Pg.
Exh 185 Petitioner remained 117
absent in the Court, on
the day on which the
witness was examined
(23.02.2021) and the
right of cross -
examination was
closed.
8. Due to the fact that the earlier Advocate for the petitioner was unable to remain present on multiple occasions; in order to cross-examine Respondent No.2 and other material witnesses, the petitioner changed his Advocate.
9. However, without appreciating any of the above referred material facts, the Hon'ble Trial Court rejected the above application to recall and re-examine witnesses vide order dated 10.06.2022.
Provisions of Section 311 Cr.P.C.
10. Section 311 Cr.P.C. reads as under:
"311. Power to summon material witness or examine person present. Any Court may, at any state of nay inquiry, trial or other proceeding under this Code, summon any person as a witness or examine any person in attendance though the summoned as a witness or recall or 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."
(emphasis supplied) Page 23 of 37 Downloaded on : Mon Jul 29 23:07:31 IST 2024 NEUTRAL CITATION R/SCR.A/6068/2022 JUDGMENT DATED: 26/07/2024 undefined The PW-1 is the complainant himself and PW-2 to 4 are the Investigating Officers, who conducted the investigations. Therefore, the present case falls in the category of the second part of Section 311 since the evidences of PW-1 to 4 clearly appears to be essential to the just decision of the case.
Impugned order
12. The impugned order is palpably illegal, erroneous, arbitrary and untenable in law. Firstly, impugned order does not discuss the ingredients of Section 311 at all. Secondly, it does not come to the conclusion that the evidences of PW-1 to 4 is not essential to the just decision of the case. Thirdly, the impugned order is solely based on the grounds that earlier advocate of the petitioner Shri D. P. Joshi did not remain present when concerned Pws were examined and subsequently that earlier advocate himself has not given an application to recall the witnesses. All such findings are not relevant in the provisions of S. 311 of Cr.P.C.
13. Thus, the impugned order is per-se required to be interested with by this Hon'ble Court, in the interest of justice and to allow the Trial Court to reach to just decision.
14. Further, the stage of the evidence at pre-trial stage is very vital and important inasmuch as firstly, if no ingredients of the alleged offences are prima facie satisfied after the totality of the evidence, the Court has to discharge the accused at that stage. Secondly, it confers a valuable right on the accused to assist the Hon'ble Court to reach to just decision at an early stage and thereby to save the judicial time and to save the accused from unnecessary harassment of the trial. Thirdly, the statutory provision under Section 246 / 246(4) of Cr.P.C. clearly confers such statutory right in favour of the accused. Fourthly, Section 311 (precisely the second part) does equally apply to all the stages of criminal proceedings where the cases instituted otherwise than on police report, that is to say at pre- charge stage and also post-charge stage, without any distinction. Therefore, the argument of Respondent No.2 advanced before this Hon'ble Court for the first time that the petitioner will have chance to cross-examine the concerned prosecution witnesses after framing of the Page 24 of 37 Downloaded on : Mon Jul 29 23:07:32 IST 2024 NEUTRAL CITATION R/SCR.A/6068/2022 JUDGMENT DATED: 26/07/2024 undefined charge, is untenable in law.
15. xxx xxx xxx
16. The ratio, as emerging from the precedents, can be summarized as under:
a. The powers under Section 311 are essentially intended to ensure that every necessary and appropriate measure is taken by the Court to keep the record straight and to clear any ambiguity in so far as the evidence is concerned and also to ensure that no prejudice is caused to anyone.
b. When an application under Section 311 of Cr.P.C. is disposed of on irrelevant considerations, the Hon'ble High Court may invoke the jurisdiction under Section 482 of Cr.P.C.
c. The object of Section 311 of Cr.P.C. is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record. The determination factor is whether it is essential to the just decision of the case.
d. The second part of Section 311 of Cr.P.C. imposes an obligation upon the Court to summon and examine / recall the witness.
e. Discovery, vindication and establishment of truth are the main purposes underlying the existence of the Court of justice.
f. An oversight or inadvertence shall be permitted to be cured under Section 311 of Cr.P.C. if proper evidence was not brought on record due to any inadvertence, the Court should be magnanimous in permitting such mistakes to be rectified.
g. No party in a trial can be foreclosed from correcting the errors.
h. If the new counsel though to have the material witnesses further examined, the Court could adopt latitude and a liberal view in the interest of justice by invoking jurisdiction under Section 311 of Cr.P.C.Page 25 of 37 Downloaded on : Mon Jul 29 23:07:32 IST 2024
NEUTRAL CITATION R/SCR.A/6068/2022 JUDGMENT DATED: 26/07/2024 undefined i. Fairness of trial is the hallmark. Procedure is handmaid of justice.
Conclusion
17. Therefore, this is a fit case where the Hon'ble Court may be kind enough to invoke the jurisdiction under Section 482 of Cr.P.C. read with Article 226 and / or 227 of the Constitution of India. Thus, the present petition may kindly be allowed as prayed for.
9. Mr.Mitesh Amin, learned Public Prosecutor with Mr.Trupesh Kathiriya, learned Additional Public Prosecutor for the respondent
- State of Gujarat has submitted that the learned Additional Sessions Judge has not committed any error in passing the impugned order and the present petition arises from the private complaint filed by the petitioner. He has submitted that the petitioner was given sufficient opportunity to examine and/or cross-examine the relevant witnesses, but the same has not been done. He has urged that the petition may be dismissed and the impugned order may be confirmed.
9.1 Over-and-above the oral submissions, learned Public Prosecutor for the respondent - State of Gujarat has submitted the following written submissions.
"That all the 3 petitions arises from a private complaint filed by the petitioner for the offences punishable under Page 26 of 37 Downloaded on : Mon Jul 29 23:07:32 IST 2024 NEUTRAL CITATION R/SCR.A/6068/2022 JUDGMENT DATED: 26/07/2024 undefined sections 7, 8, 13(1)(a), 13(d) and 13(2) of the Prevention of Corruption Act. This private complaint is registered before the Court of learned Special Judge, Gandhinagar District as Special ACB Case No. 4 of 2015.
That out of these 3 petitions in two petitions, petitioners are praying for discharge from the record submitted by the petitioner who is original complainant, had examined 4 different witnesses of whom the petitioner has examined himself as PW No. 1 and other 3 witnesses are police witnesses. AS it appears from the record, the case is tried under Chapter 19 of Cr.P.C. more particularly as case is instituted otherwise than on police report.
Out of 4 witnesses examined by petitioner complainant, most important witness is petitioner complainant himself. Examination of chief of the petitioner complainant placed by the petitioner is read for the Hon'ble Court at the stage complainant was supposed to lead sufficient material to implicate concerned petitioners.
Petitioner complainant had examined other witnesses who are police witnesses and holes evidences states about they having recorded statement of different witnesses and all having collected different documents, materials etc but witnesses who are interrogated by police are yet not examined. The material other than statement of witnesses also not placed before the Hon'ble Court as evidence. In view of above all this stage, material available for consideration is examined in chief of the petitioner - complainant and on the basis of it, sufficiency or otherwise of evidence is required to be considered.
Other petitioner is praying for recall of witnesses as he is interested to cross examine the witnesses. Considering the provisions of Section 311 of Cr.P.C prayers of this petition is not unjustified."
10. Mr.I. H. Syed, learned senior counsel with Mr.K. R. Koshti, learned counsel for the respondent - complainant has opposed the present petition and has submitted that the petitioner has Page 27 of 37 Downloaded on : Mon Jul 29 23:07:32 IST 2024 NEUTRAL CITATION R/SCR.A/6068/2022 JUDGMENT DATED: 26/07/2024 undefined filed application below Exh. 237 to recall the witnesses and cross-examine them once more, which came to be rejected. He has submitted that the said application was preferred on the ground that the previous advocate engaged by the petitioner did not cross-examine the complainant and other witnesses in a proper manner. He has submitted that the Court below has given sufficient opportunity to the petitioner to cross-examine the witnesses, but the advocate of the petitioner did not cross-
examine the witnesses. He has submitted that the learned counsel appearing on behalf of the petitioner has not given any application before the Court below for re-open the stage of cross-
examination between 18.12.2020 to 20.05.2022 and the case was on the stage of framing the charge for seventeen months and even he had not remained present before the Court on the date of hearing from the date of filing the application till 20.05.2022. He has supported the impugned order with the submissions that the petitioner only seeks prolongation of the trial with the baseless application under Section 311 of the Cr.P.C. According to the learned counsel, the Court below has consciously exercised its discretion in rejecting the application.
Page 28 of 37 Downloaded on : Mon Jul 29 23:07:32 IST 2024NEUTRAL CITATION R/SCR.A/6068/2022 JUDGMENT DATED: 26/07/2024 undefined He has submitted that the Trial Court has not committed any error of facts and law in rejecting the application filed by the petitioner and urged to dismiss the present petition.
10.1 In support of his submissions, Mr.Syed, learned senior counsel appearing for the respondent - complainant has relied upon the judgment of this Court (Coram: Hon'ble Mr.Justice J. B. Pardiwala) dated 21.12.2018 passed in Special Criminal Application No. 207 of 2016 and allied petitions.
10.2 Over-and-above the oral submissions, Mr.Syed, learned senior counsel has submitted the following written submissions.
"1. The present Petition has been preferred challenging the order dated 10.06.2022 passed by the Ld. 3rd Addl. Sessions Judge, Gandhinagar in an application below Exh. 237 in Special ACB Case No. 4 of 2015 whereby, the Petitioners application to recall the witnesses and permit their cross- examination once more, was rejected. The same has been preferred on the ground that the previously engaged advocate of the Petitioner did not cross-examine the complainant and other witnesses in a proper manner.
Facts:
2. The complainant had filed a private complaint against the Petitioner Accused, who is the erstwhile Minister of Fisheries of the Govt. of Gujarat for committing offences under Sections 7,8, 13(1)(a), 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988. The allegation in a nut-
shell is that the Accused persons had accepted huge bribes and in exchange awarded fishing contracts to their known persons, at a price significantly lower than the off-set price Page 29 of 37 Downloaded on : Mon Jul 29 23:07:32 IST 2024 NEUTRAL CITATION R/SCR.A/6068/2022 JUDGMENT DATED: 26/07/2024 undefined and therefore cause a huge loss to the exchequer. The same was done in contravention to the Govt. Resolution dated 25.02.2004.
3. The private complaint filed on 03.08.2012 by the complainant came to be registered as Special ACB Case No. 4 of 2015. The said complaint was filed after receiving due sanction dated 26.07.2012 from the then Hon. Governor of Gujarat. Process was issued to the Accused persons under Section 204 Cr.P.C. in the said case vide order dated 12.08.2015. Thereafter, pre-charge vidence was recorded wherein the complainant as well as other witnesses were examined before the concerned court.
Submissions:
That, the Ld. Special Judge has rejected the application of the Petitioner filed under Section 311 of the Code of Criminal Procedure, 1973 by a speaking and reasoned order. It is submitted that the application under Exh-237 for re-calling of witnesses has been preferred after a delay of 17 months, after the rejection of the discharge application only with the ulterior motive of delaying the trial.
5. The Ld. Judge has rightly observed that even after the Petitioner replaced his advocate, the new advocate remained present and conducted the cross-examination of another witness, however, at no point was any application preferred for re-calling of witnesses. That, such an application was only preferred after the discharge application was rejected vide order dated 12.03.2021.
6. Further, it is submitted that as per Section 246(4) & (5) of the Cr.P.C., the Accused retains the right to cross-
examine a witness at trial and also examine his own witnesses. That, so far only pre-charge evidence has been recorded wherein the Accused has been accorded sufficient opportunity to examine the witnesses. That, irrespective, the Accused will get another chance to examine the witnesses at trial under Section 246(4) & (5) of the Cr.P.C.
7. That, thus Hon'ble Court while rejecting the applications filed by the accused challenging the issuance of process, vide order dated 21.12.2018, by way of a reasoned order has observed that there is more than a Page 30 of 37 Downloaded on : Mon Jul 29 23:07:32 IST 2024 NEUTRAL CITATION R/SCR.A/6068/2022 JUDGMENT DATED: 26/07/2024 undefined prima face case against the Accused persons to proceed with the trial. That, this Hon'ble Court while deciding the Special Criminal Applications Nos. 207 of 2016, 5338 of 2015 and 8971 of 2017 undertook the effort to go through the detailed report of investigation filed by the ACB before the Special Judge and observed that the scam is of about Rs. 400 crores and that there are prima facie material on record to proceed with the trial. (para 47, order dr 21.12.2018)
8. The submission of the Petitioner that Section 246(4) of the Cr.P.C. confers a statutory right upon them to re-call the witnesses for re-examination is bad in law, as this statutory right is only conferred upon the Accused at the stage of trial post framing of charge.
9. It is further submitted that such a delayed application is not only bad in law but is also preferred with the ulterior motive of delaying the trial. That, if such an application is allowed and witnesses are re-called to be examined again, there is a high probability that the Accused persons will tamper with the evidence and witnesses. That, the Accused are influential persons of the society and that this is a deliberate and meticulous attempt to tamper with the witnesses and ensure that the Accused escape the clutches of justice.
10. It is also pertinent to submit before this Hon'ble Court, that the complainant, fearing that a trial conducted locally where the Accused persons exercises significant influence, is not likely to be a fair and impartial one. Therefore, the complainant had preferred a Transfer Petition (Crl.) No. 723 of 2022 praying that the Special ACB Case No. 4 of 2015 be transferred out of the State of Gujarat. That, vide order dated 21.02.2024 the said T.P. was disposed of with an observation that:
"3. It will be open for the petitioner to apply before the High Court for vacation/final disposal of the pending petition in which the interim order is granted. Upon such an application being filed, the High Court is requested to take up the same on priority basis.
4. Liberty is granted to the petitioner to approach this Court again in case after the disposal of the matter by the High Court, the trial cannot proceed due to non- cooperation of the state in ensuring the presence of the Page 31 of 37 Downloaded on : Mon Jul 29 23:07:32 IST 2024 NEUTRAL CITATION R/SCR.A/6068/2022 JUDGMENT DATED: 26/07/2024 undefined accused, it will be open for the petitioner to approach this Court again"
11. In light of the order dated 21.12.2018, this Hon'ble Court has observed that there is more than a prima facie case against the Accused to proceed with trial and the observations of the Ld. Special Judge in the impugned order dated 10.06.2022, the present Petition is required to be dismissed and the mala fide attempt on part of the Accused to delay the trial is also required to be rejected in the interest of justice.
12. Therefore, it is submitted that the Ld. Special Judge has accurately rejected the application preferred by the Petitioner under Section 311 Cr.P.C. to re-call the witnesses and re-examine them at the stage prior to framing of charge in Special ACB Case No. 4 of 2015."
11. Considering the facts and circumstances of the case and the submissions canvassed by the learned counsel appearing for the respective parties, it appears that the petitioner is a social worker and active in politics whereby he was a Minister of Fisheries for the year 2008. It is alleged that the petitioner granted lease to several persons for fishing purpose without inviting the tenders and thereby he has misused position and enter into corrupt practice and in pursuance of the complaint, the Trial Court ordered for inquiry. That after inquiry, the police submitted report and on the basis of the report, the Court below issued summons against seven accused including the present petitioner for the alleged offences and, thereafter, Inquiry Case Page 32 of 37 Downloaded on : Mon Jul 29 23:07:32 IST 2024 NEUTRAL CITATION R/SCR.A/6068/2022 JUDGMENT DATED: 26/07/2024 undefined No.1 of 2012 was registered as Special Case (ACB) No. 4 of 2015.
On perusal of the material on record, it reveals that the complainant gave application for not proceeding further with the inquiry and, thereafter, he withdrew the application and the Court below passed an order on the application and the complainant led evidence at pre-charge stage. It is relevant to note that at the relevant time, learned advocate Shri D. P. Joshi appeared on behalf of the accused and only a question was asked in the cross-examination and no effective cross-
examination appeared to have been conducted. The complainant submitted closing purshis and, the Court below passed an order issuing suo motu witness summons under Section 311 of the Cr.P.C. to the police officers who have conducted the investigation and they were examined as prosecution witnesses.
It is alleged that on account of sickness of the petitioner, he was not attending the Court and he realized that his advocate Shri D. P. Joshi was unable to remain present on the relevant dates and none of the witnesses have been cross-examined, he changed the advocate to conduct the trial following the procedure of Cr.P.C. and though the advocate representing the petitioner Page 33 of 37 Downloaded on : Mon Jul 29 23:07:32 IST 2024 NEUTRAL CITATION R/SCR.A/6068/2022 JUDGMENT DATED: 26/07/2024 undefined found illegality and irregularity including none cross-examination of the prosecution witnesses, an application at Exhibit 237 for opening the right of cross-examination of PW-2 to PW-4 and further cross-examination of the complainant came to be filed. It is alleged that the Court below rejected the application without considering the facts and evidence on record. The decisions relied upon by the learned senior counsel for the petitioner are applicable to the facts of the present case. It emerges from the material on record that the present case is at the pre-charge stage and not finally decided and, therefore, the present petition deserves to be allowed.
12. Considering the aforesaid aspects, it is also worthwhile to refer to the decision of the Hon'ble Supreme Court in the case of Swapan Kumar Chatterjee Versus Central Bureau Of Investigation reported in (2019) 14 SCC 328 wherein the Hon'ble Supreme Court has held and observed in paras 10, 11 and 12 as under:-
"10. The first part of this Section which is permissive gives purely discretionary authority to the criminal court and enables it at any stage of inquiry, trial or other proceedings under the Code to act in one of the three ways, namely, (i) to summon any person as a witness; or (ii) to examine any Page 34 of 37 Downloaded on : Mon Jul 29 23:07:32 IST 2024 NEUTRAL CITATION R/SCR.A/6068/2022 JUDGMENT DATED: 26/07/2024 undefined person in attendance, though not summoned as a witness; or (iii) to recall and re-examine any person already examined. The second part, which is mandatory, imposes an obligation on the court (i) to summon and examine or
(ii) to recall and re-examine any such person if his evidence appears to be essential to the just decision of the case.
11. It is well settled that the power conferred under Section 311 should be invoked by the court only to meet the ends of justice. The power is to be exercised only for strong and valid reasons and it should be exercised with great caution and circumspection. The court has vide power under this Section to even recall witnesses for reexamination or further examination, necessary in the interest of justice, but the same has to be exercised after taking into consideration the facts and circumstances of each case. The power under this provision shall not be exercised if the court is of the view that the application has been filed as an abuse of the process of law.
12. Where the prosecution evidence has been closed long back and the reasons for non-examination of the witness earlier is not satisfactory, the summoning of the witness at belated stage would cause great prejudice to the accused and should not be allowed. Similarly, the court should not encourage the filing of successive applications for recall of a witness under this provision."
13. In the given set of facts and circumstances, this Court is of the view that the Trial Court below disposed of the application under Section 311 of the Cr.P.C. on entirely irrelevant considerations.
14. Having considered the submissions canvassed by the learned counsel appearing for the parties, material on record and the decisions cited at the Bar, this Court finds that the present Page 35 of 37 Downloaded on : Mon Jul 29 23:07:32 IST 2024 NEUTRAL CITATION R/SCR.A/6068/2022 JUDGMENT DATED: 26/07/2024 undefined case for interference has been made out. Under the facts and circumstances of the case, the request for recall of the petitioner under Section 311 of the Cr.P.C. was justified as at the relevant point of time there was no occasion for him to bring the relevant facts before the Trial Court. Further, this Court finds that if opportunity is given for cross-examination, the respondents will not be prejudiced as they will have ample opportunity to cross-
examine the petitioner also.
15. In view of the aforesaid facts and circumstances of the case, material on record and the decisions of the Supreme Court and on perusal of the impugned order, this Court is of the opinion that the Trial Court has committed an error of facts and law in passing the impugned order and the same is not sustainable in the eyes of law. Therefore, this Court is of the considered view that the interference is called for in the impugned order passed by the Trial Court and the same deserves to be quashed and set aside.
16. In the result, the petition is allowed. The impugned order passed by the Trial Court is hereby quashed and set aside. The Page 36 of 37 Downloaded on : Mon Jul 29 23:07:32 IST 2024 NEUTRAL CITATION R/SCR.A/6068/2022 JUDGMENT DATED: 26/07/2024 undefined application under Section 311 of the Cr.P.C. for further cross-
examination of the relevant witnesses is allowed. The same shall be done on the date to be fixed by the Court within eight weeks from the date of receipt of the writ of this order. Though the trial is pending since 2016 before the Trial Court, it is expected that the Trial Court shall decide the trial as early as possible as.
(HEMANT M. PRACHCHHAK,J) V.R. PANCHAL Page 37 of 37 Downloaded on : Mon Jul 29 23:07:32 IST 2024